Dislike or Defamation – Rules about Online Reviews

https://www.flickr.com/photos/jesper/269194762

John and Jesper | Thumbs Down by Jesper Rønn-Jensen from Flickr (Creative Commons License)

When it comes to online review sites like Yelp and TripAdvisor, it may be difficult to do to determine when a reviewer is a legally sharing their dissatisfaction about you and when they are out-and-out defaming you. The former is legally protected speech that requires damage control; and the latter may require a cease-and-desist letter or a lawsuit.

One of the best things of out the Internet is that it gives Joe Average people a platform to share their thoughts. Review sites like Yelp and TripAdvisor let multiple people share their experiences with a business that others can read and the business owners can respond to reviews within this forum. They can give you an idea of what to expect before you arrive and whether a particular place will fulfill your needs or expectations. I find it highly valuable, and when I’m satisfied with the service I received from a company, I often asked them where I can leave positive feedback for them online.

When a company sucks, I don’t hesitate to share those thoughts either. I believe that friends don’t give friends bad referrals, and that there is no problem with calling out a business that does a particularly bad job. But there is a right way and a wrong way to do it.

1. Stick to the Facts: Unless you have a nondisclosure agreement that prevents you from sharing in your experience, there shouldn’t be a problem if you simply state the facts of your experience – i.e., the delivery people were 2 hours late, your food was cold when it arrived, the clerk apologized for not having the item you wanted.

2. Share your Feelings: Share how you felt during the experience – you were pleased that the restaurant comped the meal that you sent back, you were angry that you missed an appointment while you were waiting for the delivery guys, you were shocked that the clerk stared at your chest instead of looking you in the eye when he/she spoke to you.

3. Be Accurate: Federal law requires you to be truthful and accurate when giving a review. Avoid half-truths and insinuations. There should be no doubt in the reader’s mind between what you wrote and what you meant. This law also requires you to disclose when you are compensated for providing your opinion – such as getting free products or paid for providing a review. (The penalty for violating this rule is a fine for up to $11,000.)

In general, be thoughtful about what you post online and reading each review carefully before you hit “post” or “save.” If you are making a statement that sounds like a fact, make sure that it is verifiable. So that means you can’t say that a particular restaurant gave you food poisoning unless you can present hard evidence (like a doctor’s note) that that particular meal is what made you sick. Otherwise, you might be better off calling or email laying the manager directly and explaining that you were sick shortly after eating at that restaurant and that they might want to make sure all employees are complying with the rules to avoid food borne illnesses.

If you believe and online review may have crossed the line from expressing dissatisfaction to defaming a person or the company, contact a social media attorney to review the situation and advise you of your options. With so many people sharing their opinions and experiences on a multitude of platforms, this is an issue that is not going away any time soon. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Could Amy’s Baking Company Bring Legal Action For Online Comments?

Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

Savouring a soft Scottsdale Sunset by Nelson Minar from Flickr

So social media blew up this week after Amy’s Baking Company, owned by Samy and Amy Bouzaglo, was featured on Kitchen Nightmares where Chef Ramsey walked away after he felt that the owners of the restaurant were not willing to listen to his critiques. On the show, Amy claimed that the business was hurt by “online bullies” who told lies about them.

After the show aired, the business received national attention and there were several irate posts from the owners on the restaurant’s Facebook pages – one they claim was hacked and the new one they started yesterday.  According to the Phoenix Business Journal, one of the owners’ posts stated they were keeping track of who was commenting and that they “will be pursuing action against you legaly, and against reddit and yelp, for this plot you have come together on. you are all just punks.”

Well, what if Samy and Amy wanted to pursue legal action against people who left comments on their Facebook page, Yelp, or Reddit? What would they claim – infliction of emotional distress? Defamation? For the most part, sharing your opinion is protected by the First Amendment. Yelp and Reddit simply provide forums for others to share but they don’t control the content that is posted, so there’s probably not much they could do in regards to those sites themselves.

What about defamation? In Arizona, defamation requires a false statement about the plaintiff, communicated to a third party, that hurts the plaintiff’s reputation. If Samy and Amy filed defamation claims against anyone who created a post about them or their restaurant, the defendants have three main ways to defend themselves.

Defense #1: There’s no defamation if the statement was true.
If you didn’t tell a lie, there can be no defamation. If you make a statement that only contains your opinion and you told the truth about your thoughts and feelings, there can be no defamation.

Defense #2: The only part of the statement that was false was insignificant.
If the only part of your statement that was false was insignificant, there’s no defamation. For instance, if you write a bad review for a restaurant because you didn’t like their XYZ burger but it turns out you ordered the RST burger, that would be a false statement. If the only thing that wasn’t accurate was the name of the item you ordered, but your review of it was true to your experience, that misstatement would be so minor that it wouldn’t qualify as defamation. The part that was the lie likely didn’t hurt the plaintiff’s reputation.

Defense #3: There was no reputational damage.
This is my favorite of the defamation defenses. Essentially this defense says the plaintiff’s reputation is so bad that there’s nothing you could say that would make it worse. This is a very high bar to clear. I suspect you’d have to make a false statement about a modern day Hitler to have a reputation that’s this bad. In most cases, a person can have a really bad reputation but you could make it worse if you told a lie about them and said they kick puppies or molest children.

According to one of Amy’s Baking Company’s Facebook pages, they will be having a grand re-opening on May 21st. It will be interesting to see the reviews from the people who visit the restaurant that night.

If you suspect you’ve been the target of defamation, please contact an attorney in your community. If you want more information about online defamation and the defamation defenses, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can also subscribe to the Carter Law Firm newsletter.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.