Online Reviews and Defamation

Oops… Watch What You Say – The Dangers of Online Posts
We live in a mobile society dominated by the Internet and all that it provides.  One particular hotspot is celebrity posts in various forms of social medial.  Typos, nipples, even misspelling can draw the ire or ridicule of millions and put people in the position of needing good commercial lawyers.

Debra Messing recently tweeted about gun violence while wearing a t-shirt with text that read: “Under the Gun.”  Kim Kardashian, a world renowned fashion icon misspelled the name of one of the most famous designers in the world – Giorgio Armani.

Not only do celebrities embarrass themselves writing about their lives, they also tend to flub when it comes to promoting products.  Scott Disick recently pasted manufacturer instructions for a protein shake into an Instagram post and Rito Ora promised to “drop” her new single if her tweet got 100,000 retweets (she deleted the post after it only got 2,000).

According to Lawyers Perth, even if celebrities are making mistakes online, far more troublesome activity is happening in the world of ecommerce.  We live in an era where buying decisions are dominated by what we find on the Internet.  A few telling statistics paint a vivid picture:  Half of adults under 50 routinely check online reviews before buying new items and a full 38% of adults consider online customer comments second only to price in importance.

There are other factors contribute to making a company’s web presence extremely important.  Websites remain in existence forever.  How many of us still have a Myspace account from years ago we haven’t deleted?  The truth is, once someone posts a negative review it can persist for years, if not decades.

Consumer laziness also plays a key factor.  When buyers use Google to research a company they rarely look past the first few pages of search results.  If these are peppered with negative comments it’s unlikely they’ll scroll through more and their opinion of the company will be set.

Ratings sites also contribute to the problem.  To appear more fair they often will post negative reviews alongside positive reviews to create the appearance of impartiality.  This is true even if positive reviews far outweigh the number of negative posts, giving the “appearance” there are an equal number of negative and positive comments.

An attack on your business can take place in many forums and in many ways, such as:

  • A bad review that include factually wrong statements
  • A smear campaign to harm business or induce employees to quit
  • Posting reviews that disclose trade secrets or confidential information
  • Creating a website impersonating a business to complain about another business
  • Using fake email accounts to distribute sensitive personal emails

One of the problems facing victims of these tactics is the First Amendment to our Constitution.  The First Amendment states, “Congress shall make no law … abridging the freedom of speech or the press…”  People have broad latitude to say what they want, and unless they break very specific rules there is nothing you can do to stop them.

That doesn’t mean the First Amendment gives us unlimited power to say whatever pops into our heads, there are some limitations.  Here are a few examples:

Protected Speech

Political speech is a protected form of expression and has also been the subject of landmark decisions by the Supreme Court in the last decade.  Not only can individuals engage in political speech, but the Court has ruled that corporations can also engage in this type of expression.  In general, a person cannot get into trouble expressing political desires or opinions.

Commercial speech is also protected.  This is speech, as defined by the Supreme Court as “speech where the speaker is more likely to be engaged in commerce, where the intended audience is commercial, or actual or potential consumers, and where the content of the message is commercial in character.”  That’s a long winded and complicated way of saying that someone is trying to sell something.

Finally, the type of speech we hear about most often is “expressive speech”.  Here, the definition of “speech” gets stretched to its outermost limits.  Painting and other non-verbal art forms such as sculpting or music can qualify.  If the medium communicates a person’s desires, feelings, or opinions it can be considered speech.

While the definition of speech may seem so broad that it could encompass everything, there are still some forms of expression that are not protected under the First amendment.  Here are a few:

Fighting words.  This is an interesting type of speech defined by the Supreme Court as words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace and that any benefit that might be derived from the words is clearly outweighed by the social interest in order and morality.”  Yelling “fire” in a crowded movie theater is a common example.

Copyright Infringement:  It might seem obvious, but you can’t hide behind the First Amendment when violating someone else’s copyright.

Misleading Commercial Speech.  I like to call this the “Snake Oil” exception.  The government will come down hard on you if you make misleading or false claims in advertising your product.

Defamation:  This is the “big one”.  Defamation covers some common misdeeds you hear about often: slander and libel.  The basic definition of defamation is when a person knowingly makes a false statement about another that damages their reputation.  When the false statement is spoken it is “slander”.  When the false statement is written it is “libel.”  The term “defamation” covers both libel and slander and neither is protected under the First Amendment.

And here is one more exciting fact – the ability to post anonymously is covered under the First Amendment.  The Supreme Court has ruled that “the ability to speak anonymously on the Internet promotes the robust exchange of ideas.”  So, whether you think it is fair or not, anonymity is here to stay.

So as an individual or business owner what can you do, short of legal action, to remove false statements online?  Several options have yielded results for my colleagues:

Terms of Service.  Often, the terms of service of a particular web site or service (Facebook, Twitter, etc.) protect their audience from false or misleading content.  In some cases, a politely worded letter to the owners of the web site pointing out exactly the factual inaccuracies of the problem post is enough to have it removed.  Be patient, this option can take time.

De-Indexing.  Most search engines reserve the right to remove content from their indexes that violates their policies.  This does not mean that the content is gone, it merely will not show up in anyone’s search results after de-indexing.  The various search engines have different policies about this procedure, from requiring a good faith showing that the post is false all the way to requiring a court order to de-index.

Public Relations:  Some victims of online trolling have gone directly to the same forum to do battle.  The fast food chain Wendy’s is famous for firing back at negative comments with flippant and amusing replies that tend to diffuse any animosity.  Some companies use facts as ammunition.  When Apple released a new version of the iPhone and there was widespread press about the phones “bending” with use, Apple came on twitter and showed that there had only been six complaints out of millions of iPhones sold.  Sometimes hard facts are your best defense.

Now that you’re armed with a little knowledge let’s put it to the test to see which of the following two scenarios resulted in a courting finding of defamation.

Scenario 1

A former tenant posts online that the landlord was a “sociopath narcissist” who “celebrates making the lives of tenants hell.”  They also claimed that the noise, intrusions and other bad behavior at the complex contributed to the death of three tenants.  The former tenant also posted that the owner evicted six long term tenants for unpaid rent when in actuality the rent was paid in full.  The court found that each of the statements posted online by the tenant were factually false.

Scenario 2

A user posted on the “Rants and Raves” section of Craig’s list about a local bank.  She claimed “the CEO thinks that the bank is her personal bank to do what she pleases”. She also posted that the “CEO should not be allowed to provide a job to her lazy son.”  Among other things she called the bank “piss poor” and a “problem bank” that left clients “high and dry”.

And the winner is…  Scenario 1.  Remember, the fundamental basis for a defamation claim is posting something that is untruthful.  Stating that a person is a “sociopath” and created an environment that contributed to the deaths of three people are both factually untrue in this case (as well as all the other claims).

In Scenario 2 the court rules that since the post appeared in the “Rants and Raves” section a reasonable reader would interpret the comments as pure opinion and not fact.  A close call, in my opinion, but nevertheless that is what the court ruled.

Online Reviews and Defamation
Tagged on: