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

by JD Supra Perspectives
Contact

...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]

Written by:

JD Supra Perspectives
Contact
more
less

JD Supra Perspectives on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.