By Mark Rosenberg, Tarter Krinsky&Drogin

Negative reviews on an Internet review site such as Yelp, Trip Advisor or Healthgrades can quickly damage your or your business’ reputation.  Even more problematic is when the review is defamatory, that is when the review is based on false statements of fact.  While the reviewer’s opinions are protected speech under the First Amendment, false statements of fact are not protected.  Under the law, there is a difference between when a reviewer claims that a restaurant’s soup tastes like gasoline and when the reviewer falsely claims that there was a mouse swimming in his soup. The former is a protected opinion (assuming that the reviewer actually tried the restaurant’s soup) and the latter is defamatory.

While negative and even false reviews can be frustrating, it is not always necessary to respond to each one.  Before moving forward, an analysis should be conducted as to the importance and nature of the review, its potential to cause damage and whether a particular response could make things worse.

In general, there are three avenues that can be taken in order to have a negative review taken down – convince the reviewer to remove the offending review, ask the review site to remove the review and obtain a court order or judgment requiring the reviewer to take down the review. Here, we break down how you can protect yourself when you or your business is being defamed on a review site.

• Respond online to the review. Most review sites permit the business being reviewed to post a response to the review. If the problematic review appears to be rooted in a negative customer service experience, a little bit of sugar can work. Apologize for the reviewer’s unhappiness and invite the reviewer to contact your customer service department.  Be sure to provide the customer service department’s telephone number in the response. If the reviewer contacts your customer service department, offer the reviewer a refund, replacement or credit, even if this type of compensation is not required by your policies. Often, this is enough to get the reviewer to remove the post. For example, if a reviewer is complaining about a product that broke after the expiration of a warranty period, providing the reviewer with a replacement or free or discounted repair may be enough to satisfy the reviewer. On the other hand, if the review is a false review by a person who never used the product or service being reviewed or omits critical facts, respond to the review and point out why it is inaccurate. When doing so, it is necessary to be mindful to not violate your privacy policy and relevant privacy laws such as HIPPA, which protect certain types of information from disclosure.
• Send a Cease and Desist Letter. If the reviewer can be identified, sending a cease and desist letter can sometimes convince the reviewer to take down the post. Cease and desist letters are often necessary when privacy laws or other issues prevent a meaningful online response.  These letters need to be drafted with the expectation that the recipient will post the letter on the Internet and mock the sender. In order to avoid appearing to be heavy handed or seen as a bully, the tone of the letter should be professional, the letter should acknowledge the reviewer’s free speech rights and an explain why the reviewer’s post exceed the bounds of protected speech.
• Buy-off the Reviewer. If the negative review is extremely damaging or part of a reviewer’s ongoing effort to damage you or your business, it may be necessary to pay the reviewer to cease. Distasteful as this may be, sometimes it is the only solution short of a lawsuit, particularly where the review can be viewed as protected opinion making. Effectuating this option requires a formal settlement agreement with strict confidentiality provisions.
• Contact the Website. Under Section 230 of the Consumer Decency Act, websites are immune from liability for defamation based on third party postings. However, websites may be willing to remove problematic reviews if they are false or otherwise violate the website’s terms of use. For example, if a business can demonstrate that the review was posted by a person who did not receive the product or service being reviewed, many review sites are amenable to taking down the false review. Similarly, review sites may be willing to take down postings which contain certain types of content such as obscenity, hate speech, PII and cyberbullying, all of which are usually prohibited by the website’s terms of use. When contacting a website requesting that a review be taken down, provide a precise and detailed explanation as to why the content is problematic and why it is important for the content to be removed.
• Obtain a Court Order or Judgment.  A court order is often the option of last resort when the other avenues lead to dead ends.  In the case of anonymous posters, it may be necessary to file a “John Doe” suit in order to obtain discovery as to the poster’s identity. Because anonymous speech is protected by the First Amendment, many jurisdictions impose exacting standards which must be met before a court will allow a subpoena to be issued to a website requiring that the website provide identifying information for the reviewer. Because websites are protected by the Consumer Decency Act, the order or judgment obtained in this type of lawsuit needs to be directed to the person posting the reviews, not the website. Nevertheless, if the order or judgment makes clear that the content at issue is unlawful, many websites will agree to take down the unlawful posts.

About the author: Mark J. Rosenberg is a Partner in the Intellectual Property Group and a Co-Chair of the firm’s Reputation Management practice. He has more than 25 years of experience assisting clients in protecting their reputations from defamation and violations of their publicity and privacy rights as well as representing clients in acquiring, protecting, enforcing and licensing their intellectual property rights.