Legal Perspective on Negative Online Reviews: What Both Sides Should Consider Before Jumping Into the Fray

JD Supra Perspectives

...reviewers should be able to back-up any factual claim, or claim that can be considered factual - Travis Crabtree

Earlier this week, after reading the latest cautionary tale of how a bad Yelp review can lead to a legal nightmare for both sides, we decided to ask experts on JD Supra for their perspective on online criticism.

We asked: for customers and businesses alike, what should we know about libel and defamation (and the legal pitfalls of online rants in general) before we post negative comments online? Here’s what we heard back:

For Reviewers

1. Before you vent online, sort out your facts and opinions (and understand what each will mean in a defamation claim)

Attorney Travis Crabtree of Gray Reed & McGraw explains: “Opinions cannot be the basis of a defamation claim, but facts can. That distinction can be a difficult one to make when in the middle of an online rant, so the main point is that reviewers should be able to back-up any factual claim, or claim that can be considered factual. Calling a dry cleaner lousy won’t get you in trouble. Saying they refused to return your shirt because they were wearing it can land you in court. Calling them thieves gets a little trickier. “

Jamie Nafziger, a partner at law firm Dorsey & Whitney, echoes the view thusly: “The most important things users can do to protect themselves from liability for negative reviews are to (1) be sure their posts contain honest opinions and (2) be sure that to the extent posts contain facts, the facts are truthful. If users are including facts, they should link to their sources, if possible. Lying or exaggerating can land a user in court.  Posting flaming remarks, abusive comments, or lies also may tarnish the user’s reputation or result in the user being banned from participating in a social network. Don’t stop posting reviews – just be sure your reviews are truthful and based on your personal experience!”

Although, to Nafziger's last point, we did hear another perspective:

2. The best way to avoid being sued for posting a negative online review is to not post one in the first place

Jeffrey Lewis of law firm Broedlow Lewis explains: “Even if your online review is completely true, you can still find yourself named as a defendant in a defamation action. Even if you prevail at the end of years of litigation, you may not recover all of your costs and attorney's fees and you certainly will never recover the time, stress and aggravation of being sued. Many states have enacted protection to weed out frivolous lawsuits, such as California's anti-SLAPP statute. These legal protections allow an online reviewer, in some cases, to quickly obtain a dismissal of a lawsuit and get the reviewer's attorney's fees paid for. However, the protections do not prevent an online reviewer from being sued in the first place and there is always the risk that an anti-SLAPP dismissal is not obtained quickly. Before posting a negative online review, consider running a google search for the following four words: online review defamation lawsuit. The results suggest that the 'benefits' of posting a negative online review are usually far outweighed by the economic and other costs of being named a defendant in a lawsuit. “

3. Consider insurance

Especially if you are a serial critic. Lynda Zadra-Symes of law firm Knobbe Martens reiterates that “it is important that the posting is truthful and can be supported with evidence” but also suggests: “People who post a lot of online reviews should also make sure that they have insurance to cover legal fees in the event of a libel suit. This may be covered by a homeowner’s policy or an umbrella policy, or the advertising or personal injury section of a general business liability policy.”

Online negative reviews should still be treated as 'customer feedback' and used constructively by the business. - Jeff Van Hoosear

For Businesses

1. Don’t call a lawyer; call a P.R. firm

Travis Crabtree again: “You are usually better off spending your money on a good P.R. or social media team than hiring legal counsel. They can help you respond in the most professional way or help push the damaging content down on the search engine results. You can often work with the more reputable review sites to have content removed that is clearly inflammatory or full of personal animus in violation of the site’s terms and conditions as opposed to a helpful review. Filing a lawsuit often brings more attention to the negative review than it would have otherwise ever received. If it gets to the point where you need to sue, however, focus on the person who did it and not the website. If your case has merits, with enough fortitude and finances, you can usually unmask the reviewer and pursue them.”

2. Consider bad reviews as valuable, constructive feedback  

Attorney Jeff Van Hoosear at Knobbe offers an additional, very worthwhile perspective on an alternative to legal action: “Online negative reviews should still be treated as 'customer feedback' and used constructively by the business. Is there a problem that needs to be addressed?  If so, address it, and let the reviewers know you’ve addressed it. Even if a business feels the reviews are unfair or untruthful – it should still reach out to the reviewers with an apology and offer to make it right.  'Lawyering up' should be reserved for the egregious case that goes beyond the negative and attacks the integrity of a business’s products or services.

3. Carefully consider reasons not act; work with the review platform to get inappropriate comments removed

The final word, from Melissa Krasnow, partner at Dorsey & Whitney: “Sometimes, there can be compelling reasons not to take action (for example, a negative review that is outrageous and reflects poorly on the reviewer, where taking action could aggravate a situation and lead to another negative review or other negative reaction, etc.).

If the business chooses to proceed, the business should determine whether (1) the review does not comply with the terms associated with the platform (for instance, Yelp’s terms from 2011 and 2012 prohibit a defamatory review and warn that a defamatory review could expose the reviewer to liability) and (2) the terms allow for removal of a review (for example, Yelp’s terms from 2011 and 2012 provide that Yelp reserves the right to remove, screen, edit or reinstate a review in its sole discretion without notice). A business can contact the platform to discuss the reasons for seeking removal of a review. Depending on the facts, a business may consider engaging in a dialogue with the reviewer about the review in an effort to remediate the situation, in addition to or instead of contacting the platform.”


[image credit: CustomerLink]

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