Every business knows that online reviews matter. They are today’s equivalent of “word of mouth”. It is to be expected that most businesses will, at some point, receive negative reviews online. After all, unhappy consumers tend to want to share their negative experience with the world. Those negative reviews may have a great impact on the business’ financial success or failure. Indeed, the more negative reviews or ratings the business receives online, the more likely it is to suffer a financial loss. What can a business do to deal with such negative reviews, particularly when it believes those reviews are unfounded?
There are two overall approaches that can be taken to deal with negative online reviews: the public relations approach and the legal approach. This article will provide a brief overview of the legal approach. I recommend, however, that businesses who are dealing with this problem consult both a PR professional and a lawyer with expertise in this area when formulating a strategy.
Suing the reviewer for defamation
In Canada, a business that has been the subject of negative online reviews may sue the reviewer for defamation. Canadian law states that a person may be liable for defamation if he or she publish words that would tend to lower the reputation of the plaintiff in the mind of a reasonable person. It is arguable that a negative review of a business would tend to lower that business’ reputation in the mind of a reasonable person. Thus, a negative review is prima facie defamatory.
Assuming the reviewer can be identified (it may be possible to identify an anonymous reviewer through special court orders), there are risks involved in suing the reviewer for defamation. The reviewer may have several legal defences available to him or her. For example, the reviewer can argue the legal defence of “Justification”, which would require the reviewer to prove that the facts stated in the review were substantially true. The reviewer may also raise the defence of “Fair Comment”, whereby the reviewer may establish that the opinions stated in the review can be held by a reasonable person. Thus, even though the negative review may be prima facie defamatory, the business may lose the defamation lawsuit.
There are also PR risks involved in suing for defamation, which is one reason why a PR professional should be consulted in formulating a response strategy. For example, the negative publicity that can be generated from a business suing its unhappy customers may be more damaging to that business’ reputation than the negative review itself.
The fake review
What if the negative review was not written by a former consumer of the business? Perhaps the review was written by a competitor of the business, or by someone with a grudge against the business or one of its employees? (e.g., a former employee or spouse).
If it is indeed a fake review (i.e., the person who wrote it is not a legitimate consumer), then the defendant would have no legal defences, and a lawsuit for defamation is likely to succeed against the reviewer. Moreover, if the reviewer is a competitor of the business, who is posting fake reviews in an attempt to gain a financial advantage, there may be other legal claims that the business can raise, including unlawful interference with economic relations and unlawful marketing and advertising practices.
Can I sue the review website?
In Canada, website operators that host defamatory material and do not remove that material after receiving notice of it, may face liability for defamation. Thus, if a business is a target of negative reviews on a Canadian hosted site, that website may be sued for defamation, unless it takes down the defamatory material.
Why, then, are websites such as Yelp or Tripadvisor not regularly sued for defamation? That is because those websites are located in the U.S. In the U.S., website operators enjoy legal immunity for defamation posted on their websites. Thus, it is unlikely that a business would be able to hold those websites liable for defamation.
Maanit Zemel
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