Cyber-Critics: Responding To Defamatory Online Reviews

BEVERLY A. BERNEMAN

Partner

NEIL P. JOHNSON

Associate

A business’ positive, proactive engagement over a negative review can often diffuse an otherwise volatile situation.

Business owners should be prepared to deal with defamatory reviews when they arise, but must carefully consider options before responding.

INTELLECTUAL PROPERTY
Cyber-Critics: Responding To Defamatory Online Reviews

This is Part II of a two-part series discussing the plague of negative online reviews. This second part considers the practicalities and options available in response to illegal reviews (defamatory content).

When defamatory content is posted on a business’ profile, it can drive a business owner to madness. But a calculated response can stop the review from taking on a life of its own. Part I of this article helped distinguish a defamatory review from a simply negative one. What happens when a business owner is saddled with a false statement about his or her business where damages are suffered, devoid of any applicable legal exception?

The response to the defamatory review should be considered carefully. The risks have to be weighed against the rewards. While anger is often the first response, a business owner should consult with an attorney to understand which of the following responses would be appropriate.

(a) Removal of Review. Online review platforms usually have governing terms and conditions that outline impermissible content and provide for a process by which a business can request removal. Often, these terms and conditions will not expressly prohibit “defamatory” reviews but will provide for the removal of “illegal” content. Under Yelp’s “Review Guidelines,” Yelp expects a review of a business to be “factually correct” and to not “exaggerate or misrepresent” the reviewer’s experience. And if an owner reports a violation, the business is beholden to the online review website to determine whether and when to remove an online review.

The disadvantage of removing the review is potentially causing the defamatory information to become more widely spread across the Internet in the individual’s attempt to remove it from public view. The reviewer could be offended by the removal of its review which shines more of a light on the situation, causing a chain reaction of more negative reviews.

Also, by removing an online review, the reviewer could begin a game of “whack-a-mole” where the reviewer, who has now received attention from the business owner, could create a new user account and repeat the same defamatory review on the same platform, or on another one. Such an endless fight could take the business owner away from building goodwill with prospective and existing customers.

(b) Positive Response. This strategy may sound foolish but a business’ proactive engagement over a review can often diffuse the situation. These online review platforms encourage business owners to reach out to the individual and to discuss the dissatisfaction with the goods and services offered. It could lead to revised reviews and potentially continued business from the reviewer. According to Yelp’s Data Science team, “Yelp users are 33% more likely to upgrade their review if [a business] respond[s] with a personalized message within 24 hours.” Airbnb is resistant to remove reviews and, instead, gives each party the opportunity to respond to a negative review.

When the reaction has spread beyond a simple response by the business owner, a defamed party should consider retaining a public relations firm. Internet communities are prepared to publicly shame businesses in the name of social justice so prevention of this rising tide may require an immediate, professional reaction.

The nagging concern with reaching out is the continued existence of a false review. Even if the owner adequately addressed and resolved the reviewer’s dissatisfaction, the review could still remain on the business’ profile.

(c) Cease and Desist Letter. Prior to the nuclear option of litigation, a well-worded cease and desist letter may achieve the outcome of removal of the review. For more information, you may want to revisit articles in the Winter and Spring 2018 editions of this newsletter regarding cease and desist letters.

(d) Lawsuits. Upon the evaluation of the review as defamatory, the business owner can consider a lawsuit for defamation, along with other claims such as tortious interferences with existing and prospective business relationships and false light. If the reviewer continues to post about the business, the business owner could seek injunctive relief to halt the reviewer’s continued harassment.

The disadvantage of litigation is the considerable amount of time and fees expended. Given the ephemeral nature of Internet reviews, the sting from the defamatory review may subside by the time judgment against the reviewer is entered by the court. The significant cost of litigation should lead to a discussion between attorneys and their clients on the cost-benefit analysis especially when (i) the type of defamatory statement requires proven, not presumed damages, (ii) the damages are difficult to prove, and (iii) the reviewer is anonymous.

Further, even if the business wins in the court of law, it could lose in the court of public opinion. From the public’s perception, the initiation of litigation could be viewed as a company’s attempt to silence an unfavorable opinion that may be a legitimate gripe. This external factor should be considered in the overall cost-benefit analysis before the initiation of any lawsuit.

CONCLUSION
Business owners should be prepared to deal with negative (or defamatory) reviews when they arise because the reviews can occur and grow quickly and cause devastating effects to a business. Any response should consider the nature of the review (defamatory or negative) and the context to develop the best strategy for dealing with the review. Although false reviews cause strong reactions by business owners, a poor response by the owner could cause an even stronger reaction by its customers.

If you have questions or need additional information, please contact an intellectual property attorney at Golan Christie Taglia LLP.