These days it’s common for a consumer to leave an online review of products and services that they use. This process works well if they post a five-star review following a wonderful dinner. But what if their soup was cold, the steak burnt and the waiter rude? If they leave a 1-star review, could doing so boil over into a legal battle?
Sometimes. For example, in 2019 a Florida man paid over $25,000 in legal bills to defend a Yelp review against a veterinary practice. In that case, the review said was that the poster’s dog died because the surgeon never showed. Or consider a 2018 review on TripAdvisor in which a man gave a Missouri tourist attraction an underwhelming three-star review. The tourist attraction responded with a lawsuit demanding $25,000. Meanwhile, in 2015 a Colorado couple posted a negative Yelp review of a flooring company, and then spent over $60,000 defending against a defamation lawsuit.
Why have online reviews become grist for lawsuits? Because businesses—and small businesses in particular—rely on word of mouth to generate customers. Indeed, more than 80% of Americans check out online reviews before patronizing a local business.
Given those numbers, businesses have good reason to maintain excellent online reputations. In many cases, that means pushing back when they think the review is unfair or unwarranted. But in a few cases, it means acting like a bully to silence critics who can’t or won’t spend thousands of dollars fighting over a review.
Now let’s talk about when an online review is legal and when it’s not. Online reviews are governed by the First Amendment of the U.S. Constitution. Many states also provide extra protections through statutes known as anti-SLAPP laws. Under these laws, consumers can post unhappy reviews of products, services, and experiences as long as the review is truthful. If not, the business has grounds for filing a defamation lawsuit.
So, what kind of reviews will resist a defamation suit and which ones will encourage one?
Generally, honest opinions are safe. Take, for example, “I wasn’t happy about the service” or “The staff was rude.” In each case, the business won’t like it, but opinions are seldom defamatory.
On the other hand, factual assertions open the door to trouble—usually because the facts are wrong, cherry-picked to present a misleading picture, or not backed with evidence. For example, make sure you are right before posting something like: “The company isn’t licensed to provide their services” or “The company didn’t return my money even though they have a money-back guarantee.” And, even if you are right, be prepared to provide receipts, emails, and other evidence to support the review.
What about the online platforms that host the review: Can they be sued too? No. Under the U.S. Communications Decency Act, websites—including Yelp, Angie’s Lists, and other consumer-review sites—are not liable for publishing content written by a third party.
All of that said, most negative online reviews won’t lead to a lawsuit. After all, lawsuits are expensive—and even if the business wins, there’s no guarantee that it can collect against the reviewer. Unsurprisingly then, businesses frequently choose other avenues for dealing with negative reviews. The first option is to ask the website to take down the comment if it’s factually inaccurate. In those cases, the website has no duty to remove the comment but often will. The second option is to post a gracious response to the review that addresses the issue and offers a solution. And the final option is to neutralize the negative review in a sea of positive reviews. For instance, the business may encourage happy customers to post reviews.
To sum up: If you’ve had a bad experience with a business, and you want to post a review, don’t just write whatever pops into your head. Stick to your opinion and state the facts fairly. In doing so, avoid embellishment and generalizations, and have evidence for any facts mentioned in the review.
Meanwhile, if you are a business lampooned by a defamatory review, first check if the website will take it down. If not, consider whether it would be more cost-effective to inoculate the review with a gracious response or to bury it under a deluge of positive comments from happy customers. If not, and the comment is truly harmful to your bottom line, then consider speaking with a lawyer.
This column is for informational purposes only and is not intended to be taken as legal advice. For your specific case, consult a lawyer.