Yelp Reviews – Defamation or Freedom of Speech?
Angered by what a consumer may feel is imperfect treatment by a business, a consumer might choose to post negative online statements about the business with whom they have the disagreement. In some cases, this is not malice. But in other cases, the unhappy customer launches a social media campaign to spread falsehoods about the business owner in an effort to defame the business and/or business owner.
The company’s response. Fight back.
Real world consequences
A noted case involves a Dallas-area wedding photographer with over 10 years experience in the industry. After a small disagreement with her client that amounted to only $125, a jury decided that the consumer acted with malice in targeting the photographer. The couple apparently posted online on Instagram and Yelp in an effort to defame the wedding photographer. The jury has said that the couple must pay the photographer $1.0M for launching a public campaign intended to defame and discredit her. The consumer agreed to the photographers terms, yet this dispute later arose over a small fee in the contract.
This case is relevant because it is the first case in which a consumer is actually penalized–to the amount of $1M awarded to the photographer by a Texas jury–resulting from the defamatory actions conducted by the customer. In this case, for example, the photographer was forced to close her business after the 1-star reviews poured in from people that the wedding photographer had not even worked with. This case is real change in a society who puts great emphasis on reviews online that may not be substantiated.
The changing landscape of online reviews
Only a few years before this case, another case caught our attention. A women in Virginia posted negative online reviews about her contractor. The contractor retaliated by suing her for $750,000 in a defamation lawsuit. The case did not go far, but eventually the women in Virginia removed her negative reviews of the contractor, which caused the law suit to stall. Eventually she was found guilty of defamation, but she was let off the hook for damages. The woman said that she removed the negative reviews because comments in the contractor’s response post on Yelp were popping up as the first listing in Google searches on her name. The question remains, do Yelp reviews defame?
Do Yelp reviews defame businesses?
Another case in California illustrates the same. A dentist sued a women for posting negative reviews of him on Yelp. This case actually back-fired when the judge ordered the dentist pay the legal bills of the patient. So, the Dallas defamation lawsuit filed by a photographer illustrates a turn in legal consequences resulting from defamation lawsuits. Suits were brought up after what the business owner deems to be a public campaign intended to defame and discredit the business. In the past, these type of lawsuits were unsuccessful, however they now have a new precedence. Indeed, the couple who originally hired the wedding photographer was ordered to pay the photographer $1M in damages!
Mark Goldowitz, founder of the Public Participation Project, which monitors such lawsuits, said he sees a troubling trend in review site defamation cases. He thinks they are a threat to vibrant new communities that have sprung up around Yelp and other sites.
“The suits can have a chilling effect on people’s willingness to share information,” Goldowitz said. “It does lead to people not posting reviews for fear of getting sued and to taking them down when threatened by a lawsuit.”
What is a defamation?
When does the campaign a against business owner amount to defamation? What makes posts defamatory?
- A review left by a person that has never been a customer of the business could be defamation. If you are not a consumer of the business who you review, then your negative review can be considered defamation. Make a note to only review businesses that you have a direct business relationship with. Posting a review, for example, of a business “your friend” dealt with could be considered defamation.
- Be weary of negative reviews you post online and examine carefully before posting. A very large percentage of Internet users know how to post on social media in an effort to help build a business or tear it down. This is not an accusation, but an observation.
- Review a business’ online “terms of conditions” before you post anything derogatory. You might have previously agreed to the terms.
Advice for reviewers who want to avoid similar lawsuits:
Stick to opinion and “tell the truth, and you won’t get into trouble.”
Business owners’ protection–4 Tips:
What can business owners do to protect from Yelp reviews torpedoing their business?
1. Be proactive
What do your customers say about your business? Keep track of reviews. More reviews than usual could be a sign that someone posted a negative review about your company online. Keep a notification on Google so that you are aware of any mention of you or your business will trigger an email. Negative reviews can catch you flat-footed. Have a company policy and plan in place. Take your reputation management seriously and proactively.
The best places to regularly monitor your online reputation is by using Google Alerts, Twitter, and Social Search to keep on top of anything new regarding your online reputation. Keep track of your Yelp reviews. Both positive or negative reviews on Yelp are important to keep track of. So, make it a habit to at least once a week monitor your business name and reputation online.
2. Keep communications well documented
The Dallas lawsuit illustrates again how important it is to keep communications in writing. The office manager of the wedding photographer, rather than accept a phone call from the disgruntled client, offered to communicate via e-mail. The lawsuit used e-mails for documentation in the defamation claim in court. This is how important documenting your communications is!
3. Establish a Terms of Service for your business website or blog
Business owners should keep a well documented Terms of Service on their website and be sure to visibly link to the page from every page of your company’s website or blog. Establish a Terms of Conditions and setup your shopping cart so that before checkout, the customer can easily read and must accept the terms before finalizing the order.
4. Do your best to keep the consumer happy
Be flexible, but not the point of your company’s detriment. If the dispute is truly due to something your company has failed to do or perform, then keep the consumer happy and be flexible. Protect your reputation online because otherwise, it could cost you revenue.
This last tip may be difficult and in some cases, impossible, because some consumers are just out to wreak havoc. Whether it be to get a discounted rate from the company, or to extort money, these consumers might seem impossible to please. In some cases, you can even deter this type of business by referring the consumer elsewhere.