In today’s marketplace, online reviews matter, including in the employer-employee context. There are many platforms where current or former employees can post reviews about employers, such as on social media sites like LinkedIn. There are also online review sites dedicated to employer-employee relation, such as Glassdoor.com, which has been described as a “human resources company that maintains an internet accessible platform for prospective, current and former employees of businesses to anonymously review their current or former employer.”
What happens when an employer is the subject of negative reviews by disgruntled current or former employees? Such reviews have the potential of harming the employers’ business. They can also harm the employers’ relationship with its employees, and its ability to attract new employees. What can the employer do to address this harm?
Online reviews and defamation
Negative online reviews that are false or give rise to false assumptions about an employer are considered defamatory. An employer would have a claim for defamation against the poster. It may also have a claim for defamation against the review site that hosts the defamatory content. However, succeeding in such claim can be an uphill battle, for several reasons.
Anonymity of the poster
When a review is posted anonymously, the employer would need to identify the poster. Identifying the poster can be a challenge but is not impossible. In some cases, an employer may be able to obtain a special order from the court against the website that is hosting the review (for example, Glassdoor or Google Reviews) for the disclosure of identifying information about the poster, including their IP address. This type of order is often referred to in Canada as a “Norwich Order”. There is a specific test that must be met for the court to issue such an order. In 2018 ONSC 3123, for example, the employer was successful in obtaining a Norwich Order against Glassdoor for the disclosure of the identity of the employee who had posted the allegedly defamatory review.
Online reviews and the public interest
When defamatory statements are made in the “public interest”, in certain circumstances, the defendant may be successful in defending the action, because Canadian common law provides certain defences to expressions that are made in the public interest.
In addition, in Ontario and British Columbia, defendants in a defamation action may bring an Anti-SLAPP motion to dismiss the lawsuit at a very early stage. “SLAPP” stands for “Strategic Lawsuits Against Public Participation” and can generally be described as lawsuits that are brought for the purpose of silencing critics. In essence, Anti-SLAPP motions are a tool that the courts use to allow only legitimate lawsuits for defamation to proceed to trial. If successful, a plaintiff would have its action dismissed summarily and might face significant costs and even damages consequences. To succeed on an Anti-SLAPP motion, the defendant must establish that the alleged defamatory statements relate to a matter of “public interest”. Statements relate to the public interest if “some segment of the community would have a genuine interest in receiving the information” in the statement.
While some online reviews might be considered to be made in the public interest, others may not. It would depend, in part, on the language of the review and the context in which it is made. For example, the Ontario courts have found that genuine online reviews of products and services by consumers are considered in the public interest because they help the public make informed decisions regarding the purchase of the product or service.
The courts, however, have not applied a similar approach to reviews posted by employees about their employers. For example, in 2022 ONCA 391, the employer sued Glassdoor and the anonymous employee over two negative reviews. Glassdoor brought an Anti-SLAPP motion, which was dismissed by the motion judge, who found the reviews not to be made in the public interest. The Ontario Court of Appeal agreed with the motion judge that the employee’s reviews were not made in the public interest, stating:
“The motion judge determined that the anonymous review on Glassdoor’s website concerned an individual’s complaints about such things as the respondent company’s pay and benefit levels, work requirements, and the company’s infrastructure. These were complaints that, while anonymous, reflected a private dispute with no real impact on others. The respondent company was not engaged in providing services to the public; it was providing specialized services to a small number of customers.”
The Court of Appeal did not, however, “close the door” on employee reviews. It went on to state:
“In some cases, employee speech about workplace issues may well be a matter of public interest. But in every case, the burden is on the moving party to establish that its expression relates to a matter of public interest. Whether expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression.”
In other words, there may be cases where employee reviews would be considered in the public interest. In such cases, an employer may not be successful in bringing a defamation action against the employee who posted the review, or against the online review site.
When someone posts online reviews impersonating a customer or employee, I refer to those as “fake reviews”. Unlike reviews posted by genuine customers or employees, fake reviews are never made in the public interest because they are intended to deceive the public.
Fake negative reviews are often posted with malicious intent to harm the business, or to gain an advantage over the business (such as by a competitor). In cases where an employer is the subject of fake negative reviews, identifying the poster is the key. Once identified, the poster will have no valid defence to a claim for defamation and would certainly not be successful on an Anti-SLAPP motion.
Fake positive reviews can also give rise to liability to the poster, as they may be considered misleading advertising and marketing practice under the Competition Act. Such practices can give rise to civil and criminal liability. Employers should refrain from posting fake positive reviews about themselves, or hiring a third-party to post fake positive reviews on their behalf.
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