Terrible online reviews can seriously stall cash flows and decimate bottom lines. So, what should you do if you’re hit with a bomb in the form of a scathing review rant?
Let’s review the basics.
Ask Yourself, “Is This Review Defamatory or Just Negative?”
One of the most widespread misconceptions about defamation is that it’s synonymous with “negative speech” – not so. That mighty constitutional provision of personal freedom, the First Amendment, ensures that everybody on American soil has the right to rattle off as much negativity as our hearts — and frustrations – desire.
The Defamation Test
To win a slander or libel legal tussle, at the very least, plaintiffs must prove that the defendant:
1) Published or broadcast an unprivileged, false statement of fact about the plaintiffs
2) Caused material or reputational harm to the plaintiffs by publishing or broadcasting the statements at issue
3) Acted with reckless disregard for the truth or actual malice- meaning the defendant knowingly lied.
Free Speech v. Defamation
A lot of folks feel that defamation lawsuits are an assault on free speech. And, to be candid, it’s a valid concern. But it’s important to remember that U.S. defamation laws are exceptionally First-Amendment-friendly.
Remember, slander and libel torts don’t exist to protect bruised feelings, nor are they meant to be used as legal silencing tools; their function is to prevent individuals and companies from negligently and publically lying about, and unfairly running the reputation of, other individuals and businesses.
Legal Options for Bad Online Reviews
You may be thinking right now, “OK, so, what should I DO if I’m defamed online?”
1) First, don’t panic. But hop on the horn with legal counsel. If you have a PR firm, give them a shout too — just in case the issue spreads faster than Chocolate Rain.
2) Second, if your attorney gives you the go-ahead, send a pleasant message to your critic. Be nice. It works a lot more often than you’d think.
3) Third, if a kind request doesn’t work, have your attorney send a letter. Many cases are cleared up at this step.
4) If your adversary still refuses to negotiate, it’s time to file a libel lawsuit. But remember, it’s not defamation if it’s true (or, at the very least, can’t be proven true).
I Don’t Know The Identity of My Defamer! Can I Sue the Website?
Many Internet defamation lawsuits involve anonymous posters. Can you sue an anonymous poster for defamation? Can you sue the website on which the anonymous poster dropped his or her bile? The answers: “yes” and “almost always no,” respectively.
Yes: It’s possible to uncover the name of an anonymous poster in service of a defamation lawsuit. In order to do so, though, you must convince a judge that your case has weight.
No: Due to defamation liability protections outlined in Section 230 of the Communications Decency Act, it’s nearly impossible to sue a website, successfully, for defamation over a users’ post. (Like most things in life, however, there are exceptions to the rule.)
These are the basics. But defamation and trade libel lawsuits are nuanced affairs. If you’re considering a slander or libel lawsuit, consult an attorney to see if you have a workable case.
Aaron Kelly is a top-rated defamation and online business law attorney, Aaron is an advocate and strong supporter of cutting-edge, innovative ideas that embrace the entrepreneurial spirit.