If you really want to set the owners of the Facebook group’s teeth on edge, try a little client name and shame. In Australia, we’re currently in a major review and overhaul of defamation law with the Council of Attorney Generals (so state and federal governments) convening a Defamation Work Group in 2018. The laws haven’t been updated since 2005 and are seen as “not fit for purpose” by many within law. Let alone us layman outside of it that may be subjected to it.
The review took submissions in 2019. The first wave of the new laws is set to be released in 2020 with a direct focus on social media (especially Facebook and Twitter) scheduled as a second phase.
Knowing this, each time I see client name and shame posts, direct or implied, covert or saying “PM me for details”, I become queasy. As a group owner, even under the current laws, I could be charged as a distributor of content if someone wanted to push for it. If I don’t take appropriate action to get rid of the content or let you know that you are putting yourself, myself and the wider group at potential risk, I fail in my duty of care.
This is why the Freelance Jungle is now outlining why we don’t allow client name and shame – as well as giving you helpful guidelines as to how to discuss your issues without putting yourself and others at risk.
Defamation in Australia- why we get it so wrong
Most of us lack the ability to understand defamation law in Australia. Which is unsurprising, considering even the people that work in it think it needs an update.
The main issue that keeps coming up with anything legal is that we assume what looks fair or common sense is what the law upholds. This is not the case. The law is different to what looks fair, kind, appropriate or how we would like it to be.
Defamation is one of those situations. Anecdotally, I’ve seen the following issues in play online:
- We assume we have the right to free speech. We have no such law written into the constitution of Australia. We have an implied free speech, but it is nowhere near as robust as the USA laws.
- We assume truth is a defence. In Australia, we have several different defences against defamation. Honest opinion is only one of them and it has caveats such as public interest, whether the information is qualified to include the stories of both parties and a host of other points under qualified privilege– and this varies state by state. It’s also defeated if you do it with malice.
- We assume it’s OK if we defame as a last resort. I’m not a lawyer but there doesn’t seem to be anything that says, “OK, you got put under pressure, here’s a free pass”. The mitigating circumstances stuff mainly comes up in the consequences of being charged as a defence for being sued. Not to avoid it per se.
- We assume our actions have no consequences for anyone else. This is untrue. The publisher, the distributor and those who help you share it all face potential risks.
There are a few other reasons why client name and shame are not the pay-off you expect.
We mistake emotions for facts
As an admin of a large community, I do my best to give people a good hearing. The other admins are trained to ask qualifying questions. I have specifically designed the admin team to include an ex-court reporter for her investigative skills (and sometimes cynical newshound nose) as well as a community manager with vast experience (for his online knowledge). We, along with our other admins, apply critical thinking to the calls we make as much as possible. We dig for evidence.
Speaking for myself, in the times I have requested evidence of claims made against clients, other members, companies, potential scammers and more, I have received:
- Screen shots of Facebook profiles that are fake or many in number for the same person
- A list of different names for a person to say they are a scammer
- Screen caps of negative reviews on Facebook with words such as “My friend said…”
- Audio of people talking to themselves about situations
- Long messages about how someone said to someone else that so and so didn’t pay them on time, deliver the website, add the plugin etc and therefore should be removed from the group for being unprofessional
- More long messages about how X worked with Y in the 00’s and they didn’t get along with people or fell off the wagon and therefore are a risk now
- Emotional pleas from friends of friends who “hate this sort of thing” who are carrying the torch- who don’t know what action, if any, the alleged wrong person took to change the situation
None of which is proof that a person needs to be removed from the Jungle, should be shamed online and/or facing bullying or sanctions.
The law is pretty clear that you need evidence. Evidence is a body of facts and tangible items that indicate your belief or sentiment about a situation is true. Most of the time, what I see is belief and sentiment with a lot of other people’s belief and sentiment in the form of online conversations.
Also, I am not legally able to stop someone from doing naughty things. I am a good community manager. But I am not a judge, jury, police officer, lawyer, private investigator or Batman.
Me kicking someone’s arse on your say so isn’t legally permitted in cyberspace anymore than it is if I decide to punch people for you in the street.
The incomplete story
The difficultly with any problematic situation is that even if we feel wronged, hurt, abused or humiliated, the other party has a right of reply under the law. The strength of that claim versus the reply is what determines what the law does next.
You can be telling the truth but still not win. You can be telling the truth as you know it but failing to meet requirements in protecting yourself from a situation.
A classic example of this would be you stating a client hasn’t paid you. You’ve decided to engage in client name and shame as a last resort.
Why is this your last resort? Because there was no contract or written record in place. Or because you haven’t challenged the client through debt collection or small claims court because you don’t think it’s fair and/or cannot afford the fees.
If you haven’t followed due process and made use of the things that protect you, is client name and shame an appropriate response? No, it isn’t.
It’s a bit like saying, “I didn’t need to put up a fence to keep a toddler out of the pool as I assumed it was getting swimming lessons.”
You have to account for the toddler not to have that knowledge, for things to go wrong and for people to question whether it was up to the toddler or the parents to make up for your lack of fence.
You have the right to negotiate a contract. But you also have the responsibility to make sure it’s in place and enforce it. That’s your protection against problematic clients.
Not client name and shame.
Client name and shame is kind of…well, lame
From my perspective, client name and shame really doesn’t do much.
Will freelancers stop working with a client based on your say so? They might. But you cannot stop every single person in Australia and the world from working with someone. It’s impossible.
In fact, even if a client has a judgement against them in one state, they can still own a business in another state. Or if they’ve failed as a company director, they can still be in a managerial role where they make decisions.
The law doesn’t allow you to stop people from working with clients based on your experiences with them. Only the law can decide if a company or company holder should or shouldn’t work.
Also- we’ve all worked with clients that weren’t suited to other freelancers who are fine. We’ve all given over a client that worked OK with someone else. The implication that a client sucks because they sucked with us doesn’t account for all the variables.
Terrible clients, sure.
Mismanaged ones or envelope pushers or complete mismatches? There are too many moving parts to say because X was horrible to you, they will suck like an Electrolux in every situation.
What are your intentions?
I know I sound like the father of the girl who you are picking up for prom, but you do have to ask yourself what your intentions are.
Intentions matter. There’s a difference between getting your rage rubber stamped by other people or asking for a workable solution to a problem. If you want someone to be punished for hurting you, I get it. But I am baffled as to why you use other people- not the law- to do it.
Shaming online creates problems. People are engaged and enraged. They are off to fight the battle. And then they’re all writing reviews or flooding messages onto pages and websites and Google and wherever based on feelings.
If you’ve ever seen a mob decimate a business over being worked up at halal certification or because they said no to serving a baby ‘cino and thought “Far out, what’s going on here?!” you’ll understand the potential shortfalls of this approach.
Even if you think you are on the side of the good person.
Does it make you feel better? I don’t know about that either because there’s a limit to the relief you can get when being angry and asking people to join you. Plus, you might get push-back from people that don’t agree that needles the pain you’re already in. Not to mention that you never quite know who knows who and what gets back where.
What about your reputation?
One of the most overlooked aspects of client name and shame or any online hullabaloo is the lasting impacts to people’s perceptions of you.
Conflict can make people uncomfortable. If you’ve ever wondered why someone, anyone, didn’t jump in to help someone being thumped in public, you’ll have seen this in action. We avoid conflict to avoid having conflict directed at us. Think of it as an online Bystander Effect.
If someone is always coming in and saying, “oh no, not again”, you will see the online waters slowly part. People are less and less inclined to help if the story is on repeat. Or if the storyteller is making a big production of it.
Remember, for every person cheering you on, there could be several more who are uncomfortable. They may not agree at all because how they tackle the situation is different.
You may have to consider if you can handle that challenge. Or the silent judgement. Or the back-channel gossip tunnels.
I know it’s difficult looking at it from so many perspectives, but it’s important to remember what we put online, for better or worse, can have unexpected consequences.
You may be legitimate in your rage, but what you do with it matters.
And if you constantly find yourself in situations where your head is filled with rage to the point of explosion, maybe some changes might be a good idea.
Changing how we view things, our resilience levels or what we put in place to protect us such as boundaries can all improve our situation.
So, are we not allowed to talk about client problems anymore?
The Freelance Jungle remains a safe space. But in recognition of that safe space, it does mean you have to consider your own needs in concert with the needs of others. You can’t expect to bring something to the group that will risk the admin team and other members simply because you want to get something off your chest.
As always, context and intentions in communication matter.
You are always free to workshop the issues you have with client management and projects. Or to reach out for advice. But there’s a distinct difference between being involved in a client name and shame scenario and asking for advice on a tricky situation.
A starting block for comparison is this table:
|Client advice||Client name and shame|
|You don’t mention names or identifying information||You name the person directly or indirectly in the post and/or give enough identifying information that others may spot them in a crowd|
|You don’t respond or otherwise encourage people who request this information in the comments section||You actively state you are happy to message people with the details if they want and/or you confirm guesses supplied by the commenters|
|You state what has happened with the client||You state what has happened with the client and seek to shore up your claims with loads of examples, hyperbole, conjecture and/or emotive language|
|You also include what you have or haven’t done in relation to the issue you are having||You omit the role you may have played in the situation and/or assume victimhood|
|There’s an acceptance of accountability – even if that is about identifying mistakes made, grey areas, missing elements or flags ignored||There’s a focus on blame, stating the client should follow subjective lines such as common sense, and any culpability is lessened|
|Your intention is to solve the issue and move on||Your intention is to seek revenge against the client and/or act as a white knight|
|You are the person this is impacting||You are carrying the story for someone you know or that knows someone you know without direct knowledge|
|You seem satisfied with workable options and to explore suggestions||You ignore or bypass solutions or advice that may provide insight in favour for people that validate the emotions on display, particularly negative ones|
|You have decided you need support and are reaching out||You’re tired, you’ve been overthinking, drinking, taking drugs and/or are otherwise impaired and are looking for a reaction or validation|
This is the bones of good practice with asking for advice. It can even improve the quality of advice you receive.
If you are worried you might be crossing the line into client name and shame or you need someone to help you collect your thoughts before posting or you wish to remain anonymous when asking a question related to client issues, feel free to message the Freelance Jungle admin team via the Facebook Page inbox. We want to help you get the advice and relief you need without the risk.