Defamation or Free Speech?
If you own a business, chances are that you will receive a negative review every now and then. However—what if the post is blatantly false or defamatory, and attempts to contact the poster have failed? It could be time for legal action.
When considering hiring a lawyer to assist with the take-down, try to avoid lawyers who jump into sending a cease and desist letter, as that can backfire. An effective attorney can help you figure out if the content is actually defamatory, as there are several different types of defamation. Remember that truth and opinions are protected speech, so if someone has given an opinion, no matter how negative, you likely would not have a claim for defamation. However, whether something is an opinion or fact is a litigated area and you will need the guidance of an attorney. The following best practices are from several client matters (confidential information has been removed). This information does not substitute for the legal advice of an attorney, as every case is unique.
General best practices regarding handling negative or defamatory reviews and disputes:
- A timely response by the business to honestly acknowledge any shortcomings, clarify misunderstandings and express empathy without revealing confidential information, such as HIPAA protected personal information.
- Get to the bottom of the facts as far as who is technically liable and what the possible claims are. This may require some investigation in conducting interviews with employees, online research to figure out who the poster is and other fact checking.
- Determine if the post is just a negative review or defamatory (libel). There are several types of defamation. You need to decide if you are a public figure or private individual. In general, in California, for the post to be defamatory, the defendant must have made an unprivileged false statement of fact (opinions are protected) to at least one other person (not you), without using reasonable care to verify the truth of the statement, and that person must have understood the statement to be about you, with damages to you, such as shame or loss of business. You may also need to request that the defamatory statement is retracted before initiating a lawsuit.
- If the post is defamatory, you can try to call the publisher of the defamation and try to reason with him or her and persuade him or her to remove the post in a sensitive and caring way. Hopefully, this causes the reviewer to remove the post. Note: if you are hot headed, then you should not be the one to make this call. This is when you should consider employing an advocate to finesse the situation and persuade the false post to be removed.
- If the post is on Yelp, and the poster has never reviewed any other businesses, you may not want to reply right away because Yelp’s algorithm may end up hiding the review as being unreliable.
- If the review is false, you can try to contact the web host of the review site to explain the situation – be clear that the review is false. They should have a process for reporting defamatory or illegal content and you need to take steps to report it.
However, if the above does not work, then:
- Email a positive follow-up to the poster, including empathy (try to understand their perspective and put yourself in their shoes) and possible solutions, such as compensation for the frustration or complimentary products or services.
- A lawyer could continue to try to contact the defamer by phone, email, or text. Of course, this will add up to legal fees, so the individiual could also start privately messaging through the review site, emailing, calling and texting.Consistency of follow-ups, every 2-3 days, or at least weekly (to keep putting pressure on the defamer) with something such as the following:
- “Thank you for speaking with our attorney last week and understanding that the [Google/Yelp/Facebook/etc.] review that you posted on our page was [accidentally/full of misinformation/etc.]. We were just wondering when you were going to please correct the mistake and remove it? Our attorney is $XXX an hour, so I hope you understand why I am following up! I am available for a call if you need assistance.
- Send a firm demand letter that mentions claims for defamation and the risk of litigation.
- Send an even stronger demand letter, with a draft complaint attached with claims for defamation, telling the defamer that you are filing this compliant in 5 business days if the defamatory post is not removed.
You should understand potential defenses if you file a claim for defamation. In California, we have an Anti-SLAPP motion in which you have to pay attorney fees if the post is not really defamatory – and also conduct hours of legal research to find similar cases and predict what might occur in court.
If you are willing to accept that risk and you are confident that you have a strong case, then you can file a lawsuit for defamation and other plausible claims. I have created a video, Should You Sue, which I recommend that my clients watch before deciding on litigation. The text and link to the video can be found under Press/Blog here.
Some clients prefer to jump from #1 to #6 because they know that the steps in between are costly. If the review is by a competitor, someone with deep pockets or is a blatantly false allegation that can easily be proven, then a lawyer might suggest skipping steps. If it seems like it was possibly a misunderstanding, then it makes sense to employ the “honey then vinegar approach.” Also, some clients may prefer to conduct the costly legal research (#5) at the outset if they are ready for litigation. Some lawyers may refuse to send a demand letter without first conducting legal research. It can depend on whether the words or writing are in a grey area or novel to the lawyer.
The risk of sending a demand letter is it can cause the “Streisand Effect,” which is when something blows up out of proportion and brings more attention to the situation. The defamer could retaliate in various ways such as posting the demand letter on the review site or elsewhere, have friends post negative reviews, or make complaints to professional boards, among many other things.
Some final alternatives options include:
- Burying the negative review with positive reviews from customers/patients, which I suggest as a best business practice to do anyway – request reviews from other happy customers.
- Responding to or restating the public response to the review to be 100% clear that the post is false, but also offer empathy and support, it must be carefully written to show potential customers how wonderful you are. “You are not defined by your failures – you are defined by how you overcame them.”
- Responding to the web host of the review site again with the information that the post was defamatory and evidence and trying to persuade them to hide the review and mention their liability for failing to remove the defamatory post.
- Sending a formal and firmer demand letter to the Web Host of the Review site, similar to the type that Marty Singer sends.
I understand that this is a difficult decision for the client. I personally and professionally prefer the “honey then vinegar approach,” but I have written numerous demand letters and have seen things go a number of ways — from positive to nowhere, and some leading to costly litigation—this is up to the client. I learned a lot in law school, but my school never gave us a crystal ball to predict the future. Thus, lawyers use research, analysis, investigation, negotiation, and if necessary, litigation, to meet the client’s goals.