If you’re in business, there’s a good chance that someone, someday will give one of your services or products a bad – and unfair – online review on Yelp, Google Places, Health Grades, or one of many other popular “customer reviews” websites. The reviewer will likely remain anonymous, and could be a customer, a client, a competitor, a fired employee, or even a stranger with a grudge against your entire industry. Can you sue to stop them and get the bad review taken down?
The Big Fish Always Get Away
The federal Communications Decency Act bans any lawsuits against websites and web service providers for publishing third-party content, including reviews, comments, thumbs-up / thumbs- down voting, and even for hosting lengthy, malicious blogs. You can’t sue Yelp, Google, Angie’s List, RealSelf, HealthGrades, or any review website or website hosting service for libeling you by posting a bad review or hosting a blog that is critical of you.
In California, the anti-SLAPP (strategic lawsuit against public participation) law also gives people and businesses sued for “discussing a matter of public interest” the right to recover their attorneys’ fees in some situations. An example: this year, a California Court of Appeal decided the anti-SLAPP law required a dentist to pay $81,000 in attorneys’ fees to Yelp and a negative reviewer who accused the dentist of putting in a mercury filling. The Court said this review was part of a discussion of “public interest” in the safety of mercury fillings. The dentist had already dismissed the lawsuit against Yelp, but this was of no help. Yelp was immune to suit for bad reviews under the Communications Decency Act, and the subject matter of the review entitled Yelp to recover all of its attorney’s fees under the anti-SLAPP law.
Protected Opinion or Lawsuit-Worthy Falsehood?
The law does not permit you to sue someone for expressing an opinion that cannot be proved or disproved with facts. If someone calls you a “creep” or “obnoxious” or says your “prices are too high,” this is opinion protected by the constitutional right to free speech, and you cannot sue for it. On the other hand, you can sue if someone says, for example, that your restaurant is “filthy” and in fact you follow a careful, well-documented cleaning schedule and received an “A” grade for cleanliness in a recent unannounced state inspection. A false statement of fact that is injurious to a business is not protected by the right to free speech.
Can You Find Out Who Wrote the Review?
Assuming the review contained a false statement of fact that injured your business, you face a final hurdle: finding out who actually wrote it.
Identifying an anonymous reviewer is complicated. First, your attorneys must subpoena the review site, or their hosting company, to request the IP address of the viewer. If the company has already deleted this information, your suit will effectively be over.
If you get the IP address, your attorneys must subpoena the internet service provider – the company that the reviewer used to go online – to request the name of the reviewer. If the reviewer logged on using a public computer, such as one at a library, your suit will again be at a dead end. If the reviewer used a subscription ISP – an internet service provider such as Cox or Time Warner – the ISP will notify the subscriber of the subpoena, as required by federal law.
Whether you find out the reviewer’s identity or have to fight the ISP for it, the next courtroom battle is always the same in California: to go further, you must provide evidence of each element of your lawsuit – the statement, the evidence showing it was substantially false, and its harmful nature to your business. The court may then decide the review was constitutionally protected free speech, in which case, your lawsuit is over. If the court allows your suit to proceed, you then face a long, costly, uphill court battle against the reviewer, who may not have any money to pay your lawsuit if you are finally successful.
When is it Worth Suing for a Bad Online Review?
The only situation where it is truly worthwhile to sue for a bad review is where someone has posted a very harmful series of factual reviews that are provably false and are likely to actually harm your business. Courts are likely to be much more sympathetic if the reviewer turns out to be a competitor, an ex-employee, or someone else who set out to harm your business and did not care if the factual statements in their reviews were true or false. In this case, you can seek both a money award and a court order requiring the reviewer to request removal of the false reviews. Although review websites are not required to remove false reviews, they are much more likely to be cooperative if you have a court order against the reviewer.
If you decide not to sue, you still have other options. Among the best: asking the review site to remove the review on whatever grounds that website allows, soliciting good opinions to “bury” bad ones, promptly responding to bad reviews in a gracious manner whenever a response is permitted, and offering fast solutions whenever the complaint is valid. It can also help your business to maintain an informative, up-to-date website and a strong presence on social media websites, so that potential clients and customers have multiple ways they can learn all the good things about your business.
Call SAN DIEGO LAW FIRM™ for Help with All Business Concerns
If you have a business problem or dispute, including one that involves the internet, the experienced business lawyers at SAN DIEGO LAW FIRM™ have solutions that will save you time, money, and frustration. In addition to our legal services, we can provide practical and sound management advice if your business is facing a crisis generated by events beyond your control. Please call SAN DIEGO LAW FIRM™ at 619-794-0243 to make an appointment. We look forward to helping you.