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.
- 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.
- 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.