Legal Liability and Online Reviews

Several years ago, I received an email from Yelp! notifying me that I would no longer be able to Follow people anonymously on their site and pointing me to https://www.yelp.com/follow, where I was asked to select which profiles I wanted to continue following. Under the circumstances, I found that the answer was "none of them." I had enjoyed my anonymity and wasn't thrilled to have it taken away.

This got me thinking about my Yelp! profile generally, and whether I had posted anything in the past that I wouldn't still stand behind today. It's essential to take the time to audit your own social media presence from time to time—especially if you’ve left negative reviews that negatively impact local businesses. 

Thanks to the "Consumer Review Fairness Act of 2016," consumers may not wantonly be sued for a libel like they were in the early years of online reviewing. Business owners have to be able to prove financial damage or loss of business due to your review - they must also be able to prove that your statements are patently untrue.

Unfortunately for them, many reviews are subjective. In the case of a service provider, you may be able to clearly state whether or not that service was provided to standard and give concrete examples of why or why not. In a restaurant, if the food is the issue (as opposed to measurable cleanliness or service), you are generally stating an opinion about the food. Either way, your internal ranking system may be more lenient or punitive than someone else's.

The good news is that if a business owner is offended by your review and threatens to sue you on Yelp!, you can expect Yelp! to come to your defense by adding a warning popup to that business' listing >

Pop-up Warning - Legal Liability and Online Reviews - May 17 2022

As someone who leaves online Reviews, I appreciate this advocacy - but it doesn't prevent that business from subjecting me to a long and expensive legal battle if they choose to do so. Their pockets are probably a lot deeper than mine. Companies are aware that consumers are often frightened enough by the threat of a suit to delete or edit their reviews, making any legal action unnecessary - but stifling free speech, nonetheless.

In a case filed by Hassell Law Group in CA in 2013, a reviewer was sued for "defamatory speech." The court ruled in favor of the law group (partially because the reviewer did not provide any supporting documentation or even show up to the trial). This ruling sent a shiver through the social media community, as it affects our rights as consumers on review sites like Yelp! and amazon.com and our comments on any online platform. Protecting the rights of the platform while still subjecting the individual user to legal liability is a dangerous precedent.

It's also important to add that the negative review in question was left under an alias—the user had multiple Yelp! accounts with different handles, making it challenging to prove that "J.D." was the defendant and then ordering that posts from her various personas be removed from the platform. Creating clever pseudonyms does not provide you with legal cover.

So what do you need to do to protect yourself online as a reviewer?

First, ask before you sign any contracts if there are social media or review clauses in it—in this case, it was a contract for personal injury legal aid. But if you sign an agreement with a pet sitter, home contractor, or any service provider, the same thing applies. Under the Consumer Review Fairness Act of 2016, businesses are not permitted to include clauses in contracts forbidding negative online reviews - but in older agreements, that language may still be present. Protect your right to free speech by not signing it away.

Second, be truthful. This should go without saying, but there are nuances here. You had a terrible experience, lost money and time, and may have been traumatized. Don't write reviews in the heat of the moment, and don't overstate things. Imagine that your review may be read in a court of law, and be sure to state the facts of the experience with a cool head. Keep receipts, take pictures, and document the experience. Facts, not feelings, should take the forefront.

Finally, don't be that guy who only leaves negative reviews. When a case comes before the court, your history will come into question. If your amazon.com reviews are brought before the Judge, will there be a 10-year history of one-star reviews? What do you think that says about you? Take the time to leave positive reviews and re-read what you've shared on all review platforms in the past - proactively delete things that are red flags. Like I tell my clients: now is the time to clean house, not later when an issue arises and in panic mode. Audit your reputation proactively. Do it today. Even when a review (or anything else) is deleted, it may be years before it’s deleted, so now is the time.

If you are the business owner in this scenario, ask yourself why you are so worried about your online reviews. Consumers can generally spot the difference between a smear campaign by a disgruntled former employee or competitor and genuine reviews by users. If you've received damaging blows, how did you handle those? Your first response should NOT be "how do I get this pulled down?"— it should be “how can I make this right?” Respond proactively, directly to the reviewer, offering to fix the problem. As Jeev Trika, CEO of CrowdReviews.com has said:

“If customers are satisfied, then the positive reviews — and the potential business growth — naturally follow. When the inevitable misstep occurs, honesty about the situation and the company’s intent to provide a solution can be just as powerful as a five-star rating and demonstrate that a firm cares about its name.”

In sum, review away! But don't imagine that your reviews exist in a vacuum. Your words have power, and you can use them for good or evil. Social media is a compelling and public medium — wield it responsibly.

Have trouble managing your reputation online?  We can help:  http://TheDofM.com

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