The Virginia Defamation Law Blog
Yes, the First Amendment protects your right, as a consumer, to express your personal opinions about any business you ordered products or services from, no matter how unfavorable those opinions may be. The First Amendment also protects your right to express those opinions anonymously, so if you’d rather not tell the whole world that you had a bad experience with the customer-service representative at Ashley Madison, the law allows you to post an unfavorable review of the company without revealing your real name. Still, despite the abundance and convenience of online review sites like Yelp, TripAdvisor, Google+, and Angie’s List, many consumers are reluctant to share negative experiences on these sites. Why? They worry about being sued for defamation. They read about aggressive businesses who bury non-disparagement clauses in form contracts and who file multi-million-dollar libel and slander claims in far-flung jurisdictions, based solely on a negative Yelp review. So they keep their opinions to themselves, depriving the consuming public of the benefit of their experiences. (This is known, incidentally, as a “chilling effect”).
Unfortunately, if you rip into a shady business with a scathing (and well-deserved) online review, there is always a possibility that the business will sue you for defamation. These claims are often frivolous and filed only as an intimidation tactic, but they are a pain to deal with nonetheless. Still, when a business deserves a one-star review, and has dealt with you in such a way that you feel an obligation to warn other consumers about the business, you can still write that scathing review with little risk of retaliation. Here are five considerations to keep in mind as you write that review:
- While it’s important to be honest, your safest insurance against spawning litigation with your review is to avoid representations of fact altogether. If the business is dishonest, it may not be beneath manufacturing evidence to “disprove” your assertions. But if you are careful to ensure that everything you say is relative in nature and expressed from your own personal standpoint, even the slimiest of
unscrupulous business owners will be powerless to challenge you. That’s because no one can disprove your opinions. For example, suppose you find a fly in your soup. You go on Yelp and give the restaurant two stars, noting that you were particularly upset to find a fly in your soup. The unscrupulous business owner might respond to your post by claiming it was a raisin and taking you to court. If, on the other hand, you go online and say that the soup was “disgusting” and “unworthy of being served to a human being,” what is the business owner going to do? You are entitled to express your opinions, and even if he is willing to falsify evidence, there is no way for him to prove that the soup was not disgusting or that it was perfectly “worthy”. Those terms are relative in nature and not subject to empirical proof. So you are safe.
- Unfortunately, your opinions aren’t as valuable to consumers if you don’t support them with facts. So if you’re really trying to do a public service with your review, go ahead and include a few factual details, but be sure you can back up everything you say—and imply—with proof. Found a fly in your soup? Take a picture of it before you call the waiter. Tell a friend. Put the fly in a Ziploc® bag to preserve as future evidence. OK, perhaps you don’t need to go that far, but you get the picture. Assume the business is dishonest and will call you a liar; prepare for the worst. You are far less likely to be sued for defamation if you can prove each and every factual statement in your review. And pay special attention to how your post might get misconstrued. Defamation claims can be based on implied statements in addition to express statements, so if your review could be fairly read to imply certain undisclosed facts, you’ll want to be able to prove those, too.
- Give honest opinions. In other words, don’t intensify the severity of your criticism solely to extract revenge on the business owner for providing an inferior product or service. If the dentist who fitted your braces did a pretty good job but one brace had to be adjusted on a subsequent visit, that does not give you license to hurl a bunch of invective at him on Yelp if you later become upset about not being able to find a parking space at his establishment. With the assistance of a skilled defamation lawyer, the dentist might be able to demonstrate in court that although you carefully phrased your review in words of opinion, you defamed him by misrepresenting your actual opinion of his skill as a dentist. These cases are few are far between, but if staying out of court is more important to you than winning a libel case that might be brought against you, play it safe and express only your actual opinions about the business.
- Only review places you’ve actually transacted business with. Many review sites incorporate terms of service that prohibit reviews written of establishments you never visited. So if your one-star review of Pizza Hut says, “I saw a Pizza Hut van taking up two parking spaces at my local mall – what a scumbag,” there’s a good chance your review will eventually be removed by the review site itself, as the content of the review shows the opinions expressed therein are not based on actually ordering food from Pizza Hut. In terms of your litigation exposure, adherence to this guideline is advised for the same reasons as item #3: reviewing a business you haven’t actually dealt with gives the business a basis for arguing to the court that you misrepresented a fact. When you post an online review (the argument would go), you are making an implied statement of fact that you dealt with that business and that your review is based on those dealings. If that turns out to be false, and the falsity has sufficient sting to cause material harm to the reputation of the business, you could indeed find yourself on the losing end of a defamation action.
- The Constitution protects your right to speak anonymously, so take advantage of that right and conceal your identity. Use Tor. Use a virtual private network. And use a fake name when writing the review, preferably an obviously fake name. If you follow steps 1-4 above, your review should not be defamatory anyway, but why make it easy for the business to locate and sue you should they be of a mind to do so? You don’t want to get sued, and angry business owners have been known to file frivolous lawsuits, so take steps to protect yourself. Use an anonymous, nonsensical user name like “BillyGoat28343.” If you use a real person’s actual name (say, “John Smith”), you may inadvertently give the business grounds to argue in court that, because it has no record of any actual customer named John Smith, the review is fraudulent and that it needs to subpoena your ISP to uncover your true identity. Or it could make this argument to the online-review site and conceivably persuade it to remove the review. Using a nonsensical name tells the world that you are exercising your right to speak anonymously.
So there you have it. That guy at the hotel check-in desk was rude and disrespectful. That meal you were served in the restaurant had a paperclip in it. That widescreen television you ordered online was grossly misrepresented. Let the world know about it! Follow these five tips, and any defamation litigation the subject business might file against you will be doomed to fail.