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Our question is simply, “Could posting false information have consequences?” The easy answer is, “yes.” A follow-up question to that is, “Could it actually matter?” That answer is largely dependent on the [potential] damages caused by such dissemination.

For example, in a recent demand letter, a company is asserting that a media company “knowingly publishing factually inaccurate information or [with] a reckless disregard for the truth” with potential damages in the “hundreds of millions, if not billions, of dollars.” If such is true, most would consider that amounting to material damages …

Of course, a demand letter is just that — an assertion or demand — claiming certain facts. However, what’s the appropriate action in response to such a claim? It would seem to me, the best response would be to evaluate the truth in the demand, and — if true — work to satisfy any demands to avoid this [potential] substantial liability.

In fact, in the aforementioned circumstance, that’s exactly what this media company is now doing — running counter-programming to avoid potential liability. They aren’t claiming to have waived their responsibility nor assigned their liability — they’re trying to stay out of court, rather than win or lose in court: https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.

For auctioneers, there are maybe two lessons here: (1) waiving and/or assigning liability only goes so far in that if you’re lying, misrepresenting, and the like, it may be better to upgrade your behavior than think you’re covered by all your waivers and disclaimers. (2) you’re being judged much more on your behavior (what you do) than what you say (in your terms/conditions, for example.)

Yes, some waivers and disclaimers may be good for you — for incidental items, where the customer/client should know better (reading terms/conditions, for example.) Yet, in that spirit, if your terms are 539 pages of 6pt type, it’s not reasonable to think they read them. In fact, is it ever reasonable to think your bidders/buyers and/or sellers read anything?

When auctioneers tell me that “nobody reads anything …” then can we as auctioneers hold those bidders to that standard? In a recent case, a judge told an auctioneer, “You just told me your bidders don’t read anything so how do you expect to hold them to your rules … as they clearly wouldn’t understand?”

Nonetheless, you are known by what you post, write, publish or otherwise disseminate to others, and if that’s information that is “factually inaccurate” or has a “reckless disregard for the truth,” then there’s little a disclaimer or waiver can do for you. It might be a good idea to get out of the auction business if you feel compelled to lie to your customers, clients, and fellow auctioneers.

Further, what you are posting on Facebook and similar platforms doesn’t go unnoticed by your peers. So much so that we’ve now been hired multiple times to replace auctioneers who can’t seem to realize what they post on Facebook or say into the microphone doesn’t matter — because it does. Our latest hire quipped, “When you post that kind of stuff on Facebook, you can’t work for me.”

And if you think what you post on Facebook and other platforms can’t (or won’t) end up in a courtroom, you’re mistaken. Recently, I was testifying in an auction case and the opposing counsel was attempting to discredit me (of course.) Our attorney team produced a social media post where the subject auctioneer praised my knowledge and experience — coincidentally concerning the matter at hand.

In summary — “knowingly publishing factually inaccurate information or [with] a reckless disregard for the truth” can result in legal liability as well as cost you potential business. Generally, people desire to hire other people who are thoughtful, honest, and reasonably minded — not liars, conspiracy fans, psychopaths nor sociopaths …

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.