Canada: Harnessing Social Media: Syngenta's High-Profile Use In Monsanto Bid

In our two recent articles, available here and here, we outlined how social media can influence proxy contests and identified some potential legal challenges with this development. This update focuses on the recent use of social media in the high-profile (failed) hostile bid for Syngenta AG ("Syngenta") by Monsanto Company ("Monsanto").


In May 2015, Monsanto made a $45 billion bid (its third bid in four years) for Syngenta. Syngenta's board almost immediately rejected the offer on the grounds of anti-trust concerns and lack of protection for shareholders should the deal fall apart. The rejection did not end Monsanto's pursuit and through a series of bids, the last of which was withdrawn in late August, Monsanto continued to seek support for its bid.

Syngenta's Use of Social Media

On June 22, 2015, in response to Monsanto's bid, the Chairman of Syngenta, Michel Demaré, explained the Board's position on the proposed merger in a YouTube video. In a one-on-one interview, Mr. Demaré responded to questions about the details behind the Board's decision to refuse Monsanto's offer, including concerns about the "huge execution risk" and the interests of Syngenta, its stakeholders and its shareholders.

Syngenta tweeted the video three times on the date of its release to its more than 53,000 followers, as well as on each of its respective regional twitter accounts, each with equally large followings. The company was not alone – comments relating to Syngenta and Mr. Demaré's video were tweeted and shared by a diverse range of users, from major media outlets to small town agronomists and farmers.

The video has received over 16,500 views and the knock-on social media effect carried Mr. Demaré's message to a far greater audience. For example, Twitter users from across the world commented on and shared the video:

  • @W_Boerger, a self-described agriculturalist from Greensboro, North Carolina, shared the video and noted, "Video interview: #Syngenta Chairman comments on Monsanto's recent approach";
  • @toniaracre, whose profile notes that he is the Director General of Syngenta LATAM [Latin America], shared the video and noted, "#Syngenta Chairman says Monsanto is 'trying to buy it on the cheap'";
  • @stevenrobbens, a user located in Gent, Belgium shared the video;
  • @Marc_Maret, from Baden and CEO of Infocentric Research, noted, "Great video interview from #Syngenta Chairman's on Monsanto's proposal and its huge risks and unfair pricing" in sharing the video;
  • @NCSmallBiz, a North Carolina account run by Samantha Routledge to promote a small business and entrepreneurial community in North Carolina, referencing an article that summarized the video, noted "#Syngenta rebuffs latest offer from #Monsanto, saying company 'significantly undervalued'";
  • @BloombergGeneva, Bloomberg's Geneva bureau, noted "#Syngenta Chairman Says Door is Open to 'Full and Fair' Offers"; and
  • @FinSentS_Eur60, an account self-described as for "stock sentiment analysis on European markets" noted, "Syngenta Chairman Reaffirms Monsanto Approach Not In Company's Best Interest #SYNGENTA AG."

Additionally, the video appeared and was discussed on numerous high profile websites with substantial readership, including the websites for the New York Times, Agri-Pulse, Reuters, Business Insider, and Farm Progress.

Legal Considerations

In our previous articles on using social media in proxy contests, we outlined several relevant legal considerations. Many of those apply to using social media in a contested M&A transaction. Three main concerns worth outlining are misrepresentation (secondary market liability), selective disclosure and defamation.

1. Misrepresentation

As with traditional media, parties should carefully consider the accuracy of the information shared on social media. Care must be exercised to ensure that the information on social media contains no untrue statement of material information and does not omit to state material information that is required to be stated or necessary in order to make any other statement therein not misleading in light of the circumstances in which it was made. If proper care is not taken, liability for misrepresentations on social media can result if an investor trades in the company's securities.

2. Selective Disclosure

In Canada, social media cannot be used as the exclusive means that companies use to communicate with shareholders. Material information must continue to be filed and disseminated through traditional channels and even information that appears non-material must be vetted to make sure that nothing material is being disclosed that has not already been filed on SEDAR and which has been released generally to shareholders in a press release, material change report, circular or similar document.

National Policy 51-201 requires that material information about public companies be "generally disclosed." For information to be generally disclosed, it must be disseminated in a manner calculated to effectively reach the marketplace and investors must receive a reasonable amount of time to analyze the information. The opposite – "selective disclosure" – occurs when a company discloses material information to a limited group of stakeholders (such as the media, analysts, institutional investors, other market professionals, or, for example in the social media context, via a tweet to the subset of its shareholders that use Twitter) and not broadly to the investing public. The regulatory concern is that selective disclosure undermines confidence in the marketplace by potentially creating unequal access to information and opportunities for insider trading.

In our view, the risk of selective disclosure in this context can be mitigated by using social media to promote material information already disseminated via traditional channels. This is consistent with the approach taken by Syngenta.

3. Defamation

As parties become comfortable using social media to promote their position and, correspondingly, to attack the other side's record, they should bear in mind that social media, like traditional media, can form the basis of a defamation lawsuit.1


We expect participants will increasingly use social media to influence contested situations, whether in proxy contests or contested M&A transactions.

Syngenta's savvy use of Mr. Demaré's video provides another high-profile example of effectively using social media in a contested situation. Social media platforms allowed Syngenta's video to reach audiences far beyond those typically serviced by normal corporate disclosure mechanisms and traditional media. Moreover, the cost of disseminating the video to stakeholders was likely negligible in comparison to more traditional lines of communication.

Participants in a contested situation should seek legal advice before harnessing the power of social media to their advantage. With a defined strategy that addresses the various legal issues involved – such as the concerns of misrepresentation, selective disclosure and defamation discussed above – it is possible to make effective use of social media while minimizing the legal risks of doing so.


1. In Canada, the plaintiff bears the onus of proving three things:

(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;

(2) that the words in fact referred to the plaintiff; and

(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

If these elements are established on a balance of probabilities, falsity and damage are presumed. After those elements are established, the onus shifts to the defendant to raise a valid defense. See Grant v Torstar Corp., 2009 SCC 61, [2009] 3 SCR 640 at para 28.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.