How to prevent your “ordinary” letter of demand from becoming a Social Media Backlash

Remember the old days of sending a hard copy letter of demand which only a few people (at most) were destined to see?  Well, haven’t times changed!

Now, it is crucial to consider how best to minimise the prospect that your demand will go ‘viral’.  None of us want our correspondence to spark reputational issues for the client beyond the legal issues at hand.

Prompting the reflection is this correspondence posted last week on Hungry Jack’s Facebook Page: Open letter from Jack Cowin.  The retraction followed a cease and desist letter in which Hungry Jack’s had relied on its registered trade mark rights in WHOPPER to restrain use by a Central Coast burger bar of “Wambie Whopper”.  In that case, the savvy social media recipient of the letter (which claimed to have used the term for about 20 years) launched a “Save Wambie Whopper!” Facebook page which swiftly obtained almost 30,000 ‘likes’[1].  Customers also took matters into their own hands, including:

  • making negative comments on Hungry Jack’s Facebook page
  • starting a petition on change.org which almost 5,000 supporters signed
  • organising a “cash mob”, a mass gathering of people buying Wambie Whoppers.

[1] With 29,231 ‘likes’, the “Save Wambie Whopper” Facebook page has now changed its name to “We Saved Wambie Whopper”.

This example is just part of a burgeoning trend where people take matters into their own social media hands, as a method of shaming the protagonist into dropping the complaint.  Here, social media is being used to lobby a result by sheer force of numbers and people power.  For “David” to be able to do this against “Goliath” illustrates the changed landscape.  People love an underdog (or perceived underdog).  Social media enables this energy to be harnessed in a way which combats the power of ‘deep pockets’ effectively.

These sorts of lobbying campaigns do not need to be of a grass roots variety.  Take two recent examples in the United States.  Both of them involved responses to cease and desist letters, by lawyers, which went viral.  Both channelled a “Saturday Night Live” vibe, rather than an earnest and learned tone, which no doubt helped their success online.

EXAMPLE 1:

The lawyer representing the township of West Orange, New Jersey, sought that a person called Mr Freivald take down a website called West Orange Info (extract below), on the grounds that it might wrongly create the impression that the township was affiliated with the site.  There seems to be a back story to this dispute, in that Mr Freivald had once ran for the town council and lost.

With our Australian legal hats on, we cannot say on its face that the claim is completely without merit.  However, by engaging the legal services of Mr Stephen B. Kaplitt (who seems to have a wasted career in the law given his comedic abilities), the client was able to turn the tables on the protagonist.  Here’s an extract of Mr Kaplitt’s letter to give you an idea of its contents:

See full text here.

The social media world had much to say about this legal exchange, with Mr Freivald clearly winning the popularity contest.

EXAMPLE 2:

It is possible Mr Freivald and his lawyer have spawned a trend, namely, the kind of witty legal correspondence intended to find an audience beyond the target law firm.  Here’s another example in which the writer, with much mirth, demolishes the prospect that his client can be liable for copyright infringement based on a reproduction of data online. [Ed: Those of us with an interest in US copyright appreciate that the author’s reliance on Feist might well be correct.]

OUR TIPS TO HELP OVERCOME THIS RISK:

  1. Remember that the target of your correspondence might be more social media savvy than you are.
  2. Consider the tone of your correspondence and how it might play out with a much larger audience (like, the world).  Is it too legalistic?  Is it too nasty?
  3. Consider the power dynamics when assessing reputational risk.  In the court of public opinion, will people like your client (even though they are the best client in the world etc. etc.).  Are they David? Or are they Goliath?
  4. Why not make your own letter of demand so cool it goes viral for all the right reasons?  Take some inspiration from this 2012 Jack Daniel’s letter, described on social media as the “Nicest Cease-And-Desist Order of All Time“.
  5. When things go pear shaped, consider the swift practical approach taken by Hungry Jack’s.  The retraction led to positive consumer comments.

By Natalie Hickey and Samantha McHugh