Most of us have resorted to checking out online reviews of companies when conducting our due diligence prior to engaging a company for their services or buying its products. A wealth of information is available online, and if it is online, it must be true, right? WRONG! Businesses are more susceptible than ever to negative, misleading and false reviews with the surge in popularity of social media. It is important for business owners to remain proactive in monitoring and, when necessary, correcting or defending their online reputation from defamatory reviews.
Defamation is a false statement communicated by speech, conduct, or writing to a person other than the person defamed. By way of example, posting a review on Facebook could be defamatory but emailing the business owner or company directly could not be considered defamation. Notably only facts can be defamatory. As much as it may pain us to read a negative opinion about our business, the saying that “everyone is entitled to their opinion” still holds true in this context, even if inflated.
Not all negative posts rise to the level of defamation, but business owners should make an effort to address each review and the issues raised in the review (whether good or bad). Sites such as Yelp and Google allow the owner to post a response to a review. Staying on top of reviews gives a business owner the opportunity to tell the other side of the story, allowing future users to make a more informed judgment on the merits of original review. No business wants a dissatisfied customer and efforts to mitigate the customer’s concerns may incentivize the customer to remove a negative review.
When posts do rise to the level of defamation, a business has the option (albeit rarely an attractive or financially reasonable option) to file a lawsuit for defamation. A lawsuit can come with its own negatives: (i) the cost of litigation is rarely trivial; (ii) the business’s ability to prove the damages it suffered as a result of the defamatory post of the customer can be limited; (iii) blowback from the appearance of being too defensive; (iv) ineffective remedy from the court (see below); and (v) the feasibility of ever collecting awarded damages. Although a defamation action may be used to get the defamatory statements removed, either by the parties’ agreement or by court order, a business owner must weigh whether the potential reward is worth the associated costs/risks.
A common question we field is whether a website has any legal obligation to remove a defamatory post. Unfortunately, the answer is not what our clients want to hear. Websites rely on a Federal law known as the Communications Decency Act, which shields them from any liability for the content posted on their website. In summary, the law states that a website owner is not liable for the content posted on its website by third parties. As such, even if a business obtains a court order and judgment in its favor, the post may still exist online.
There is an “end-around” to assist businesses in dealing with websites that hide behind the Communications Decency Act. Most internet traffic comes from Google searches. Although the defamatory post may never go completely away, removing it from Google’s index can make it seem that way. To remove the post from Google’s index, a business owner must get a court order determining that the post is defamatory or otherwise unlawful. Google will typically remove the defamatory post shortly after receiving the Court order. Google has online tools specifically designed to assist with said process.
You don’t need to allow defamatory online reviews to harm your business. Most importantly, business owners should enact a policy or empower an employee to proactively deal with every online review. The right approach will depend on the review. If positive, do not shy away from the opportunity to pat yourself and your employees on the back. A negative review can often be quickly addressed with a call to the disgruntled customer, a level-headed online response or through the website’s review policies. As a last resort, a review that rises to the level of defamation and has the ability to cause real damage to your business can be handled through litigation.
For more information please contact a member of the Business Team at the Law Firm of Conway, Olejniczak & Jerry, S.C.