Can You Sue for a Bad Review?

Can You Sue for a Bad Review?

Table Of Contents

    In today’s economy, online reviews can make or break a business. If your business receives a bad review and you are wondering if you can sue the reviewer, the answer is yes. Yet, to sue someone for a bad review, the review must:

    • Be defamatory or legally actionable;
    • Violate an online review platform’s Terms of Service (ToS); or
    • Attempt to extort or harass your business.

    Even if you do not realize it, your business has an online profile. Review sites like Yelp, Google, Angie’s List and Glassdoor post business pages even if you have not set up a profile, so it is possible for customers to still review your business.

    There is very little you can do to remove online business profiles as long as you are still in business. The best thing you can do is claim and monitor your business profile to control your online reputation. This includes handling defamatory reviews promptly and professionally.

    Below, we examine when, who, and how you should sue when confronted with a negative review. Then we will dive into alternative remedies to pursue if litigation is not the best option.

    When Can I Sue Someone For a Negative Review?

    First, there is a difference between bad reviews and defamatory reviews.

    A bad review written by an actual customer describing their real experience with your business is legal. Granted, these reviews may involve the customer’s honest opinion.

    “I liked the flowers, but I felt they did not match with my room the way I thought they would. 3 out of 5 stars.”

    “The manager asked me to wear a mask, and I thought that was really rude of them.”

    Reviews like those can be a thorn in the side of business owners, but they are generally not actionable for defamation. While there may be alternatives to remedy the dissatisfaction of customers like this, it would be difficult to prevail in a defamation lawsuit.

    That does not mean that businesses must cower in the face of every negative online review. A bad review crosses the line into defamation if the reviewer lies about being a customer or lies about their experience. For example, a known competitor leaving a bad review in an attempt to hurt your reputation could be considered a defamatory statement.

    Even if the reviewer was actually a customer, they cannot fabricate false stories and statements about your business. If a reviewer says your manager, Sandy, slapped them in the face, when you do not have any employees named Sandy and your surveillance shows no one was slapped in the face – you may have a defamation claim.

    If a customer alleges fraudulent conduct that never occurred, you may also have a case for defamation. Say a reviewer alleges they paid for a product which they never received. But you have proof from FedEx that they signed for the product on a particular day at a particular time. They were charged accordingly. This type of online review could cross the line into defamatory conduct.

    Some unscrupulous customers may even cross over into threats of extortion or blackmail, actions which are usually actionable in court. If a customer asks for “extras” or free services, threatening to leave a one-star review if you do not meet their demands, they are attempting to blackmail your business. Blackmail and extortion are illegal.

    If you are dealing with reviews that cross the line into being defamatory, there are still other considerations before rushing into a lawsuit. If you are a small business owner with few reviews, and the defamatory review is hurting your rating – a lawsuit may be your best option. Larger corporations with thousands of reviews may not experience the same level of reputational damage as a small business, making a lawsuit less meaningful.

    Also, if you are a professional (like a doctor or lawyer) who cannot publicly respond to the negative or false review without jeopardizing your professional license, legal intervention may be your only viable option.

    Online Reputation Management Fact: Online Reputation Management (ORM) is a way you can take direct control over the internet search results displayed when your (or your business’s) name is searched. ORM may be your best option if negative online content is newsworthy, related to a serious crime, or viral. For a breakdown of the pros of using ORM instead of suing for defamation, we recommend checking out our article, “Removing Content: Online Reputation Management vs. Legal Services“.

    When Should You Consider Taking the Last Step of Suing For a Bad Review?

    You should only consider a lawsuit as a last resort when all other efforts have failed. There are many alternatives to litigation that can resolve a negative online review without incurring the expense of a lawsuit.

    Suing over a bad or defamatory online review may also be necessary if the reviewer is trying to extort your business or acting with malice. Online extortion and internet blackmail are serious matters that require an equally serious response.

    How Long After Receiving a Bad Review Should You Sue the Reviewer?

    With any legal matter, time is of the essence. Statutes of limitations dictate how long you can wait before you file a lawsuit – and if you exceed the statute of limitations there is a good chance the court will dismiss your case.

    For example, most defamation statute of limitations in the United States range from one to three years. This means that a defamation victim must file their lawsuit within that one to three-year timeframe (depending on the state) or risk having their case dismissed.

    Filing a lawsuit over a bad review(s) should be your final course of action only after all other avenues of relief are exhausted.

    At Minc Law, we often work with clients to try to resolve negative and false reviews through customer service or by flagging Terms of Service violations before pursuing litigation. Not only are these other avenues successful in many situations, but they often save your business time and money.

    When Should You Avoid Suing Someone For a Bad Review?

    Not every bad review is legally actionable! If the online review is 100% true and accurate, a lawsuit would be frivolous (and a waste of your time and money). If the online review states a customer’s opinion or impressions, that also would not be a review you can pursue.

    The Consumer Review Fairness Act (CRFA) of 2016 protects a consumer’s right to leave honest online reviews of businesses. Worth noting is that the CFRA prohibits businesses from using non-disparagement clauses in contracts that are not open to negotiation.

    What this means is that even if you try to contractually prevent customers from leaving bad reviews, chances are that section of your contract will not hold up in court. Moreover, businesses that even attempt to use non-disparagement clauses to prevent negative (but honest) reviews can face Federal Trade Commission (FTC) scrutiny.

    Consumers and individuals have a right to leave honest reviews and using litigation as a tool to inhibit protected speech can backfire on your business.

    Even if the review is defamatory, there may still be circumstances where a lawsuit is not worthwhile. If the review is only mildly negative and has not led to any damages, a lawsuit may only serve to draw unwanted attention to an otherwise benign review.

    Along the same lines, a single negative review, depending on the content, may not be worth pursuing if you have a ton of positive reviews. If you have 999 positive reviews and 1 negative review, the negative review may not be prominent or influence other potential customers. If this is the case, you may still be able to pursue alternatives to litigation (which we will review below).

    Who Should You Sue for a Bad Review?

    One of the most frequently asked questions in the world of online defamation is whether a hosting platform can be sued. In almost every case, the review platform (e.g. Google, Yelp, Glassdoor) cannot be sued.

    It is imperative that you sue the individual that left the negative, defamatory review. Many people think suing the review site will yield better results – but this could not be further from the truth.

    For example, you cannot sue Google for fake online reviews posted to your Google My Business profile by a third-party. This is because Section 230 of the Communications Decency Act protects online platforms from liability for posts made on their platform by third-parties.

    If you know the identity of the reviewer, you should sue that person in the jurisdiction where they are located.

    If you are dealing with an anonymous review and reviewer, it is still possible to obtain legal relief. You will need to file a John Doe lawsuit to unmask the identity of the anonymous poster. From there, you can sue the reviewer directly.

    What You Must Prove During the Lawsuit Over a Bad Review

    To prevail in any defamation lawsuit, you will need to prove certain elements to establish that a legal wrong has occurred, such as:

    • The review was false and expresses matters of verifiable fact, not opinion. A review based on actual experiences of a customer or the expression of a protected opinion will not qualify as defamation.
    • The review was published and viewable by the public. Publication is a requirement in any defamation case, so you will need to preserve a copy of the review.
    • The review is “of and concerning” your business. You must show that a reasonable person would understand the false statement or false review is about you or your business.
    • That your business suffered damages as a result of the negative review. You may not need evidence of defamation damages if the review constitutes defamation per se (slander per se or libel per se) but proving that your business saw financial losses or less traffic after the review can bolster your case.

    If you suspect your business is the target of fake online reviews, make sure to read our in-depth article ‘How to Spot Fake Reviews’.

    What is the Difference Between Slander & Libel?

    Online reviews will fall under the category of libel – which is business defamation in written form. Many confuse libel with its defamatory “cousin,” slander.

    Slander is spoken defamation. This is an important distinction, because slander and libel may require different legal responses and often have different defamation statutes of limitations.

    At Minc Law, we primarily represent victims of online defamation, a digital form of libel.

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    Reasons to Be Careful Suing For a Bad Review

    Filing a lawsuit is not always the best course of action for every business (or in every situation). Lawsuits can take a lot of time and cost a lot of money. Not everyone considers the stress and expense worthwhile. Depending on your specific online defamation issue, it may be worth exploring litigation alternatives.

    Some defamation lawsuits may also be unwise if they run afoul of state Anti-SLAPP laws. The acronym, SLAPP, stands for “strategic lawsuit against public participation” and many states have strong anti-SLAPP laws to protect individuals’ First Amendment rights to free speech. Anti-SLAPP laws often apply to statements made against public figures like politicians and celebrities.

    To learn more about Anti-SLAPP laws, read about “defamation defenses” in our extensive Guide to Online Defamation Law.

    A phenomenon known as the Streisand Effect is another reason to approach defamation lawsuits with caution. The Streisand Effect occurs when an individual or business attempts to censor someone and ultimately draws more attention to the matter (oftentimes defamatory content).

    What Legal Steps Can You Take Against a Bad Review if You Do Not Want to Sue?

    Lawsuits are not always the most appropriate solution to a problem, including negative reviews. Fortunately, there are alternatives to a defamation suit that may help with negative and defamatory reviews.

    Defamation cease and desist letters are often a popular alternative to a defamation lawsuit. Simply put, these letters are sent to a reviewer (when you know their identity) requesting them to remove the negative review and cease any further conduct regarding your business. Any communication with the reviewer must be carefully worded to avoid negative repercussions.

    Sometimes, good old-fashioned customer service can work magic. If you have discovered a negative review and believe you can remedy the issue, it is often worth a shot. Some customers merely want to feel heard and acknowledged.

    Finally, most review platforms will allow you to dispute a review for Terms of Service violations. If the review is not a legitimate review of your business, it likely violates the platform’s Terms of Service.

    For example, to report and remove fake Google reviews, businesses can flag reviews via Google Maps or through their Google My Business profile.

    If it is less than obvious that the review is fake, however, you may have to obtain a court order to remove content for a platform to remove the review. Many platforms will seek evidence that the review is, in fact, fake or defamatory.

    In some rare situations, a platform may enable you to edit or delete reviews. This type of service should be handled with extreme caution, though. Editing or deleting reviews can backfire if people discover you are deleting legitimate reviews to make your business look better.

    Responding to a Review

    If all else fails and a lawsuit is not in the cards, responding to the review is a possibility. Yet, it is important to respond with caution.

    Doctors and lawyers may not be able to respond to a review publicly without violating the Health Insurance Portability and Accountability Act (HIPAA) or professional privilege rules. If you are in this position, it is wise to consult with an attorney before responding to ensure you do not create bigger problems for your career.

    If confidentiality rules are not a concern, you may be able to respond in a way that leads to voluntary removal of the negative review. Leaving a short, objective, and cordial response may go a long way toward remedying the situation. Argumentative or hostile responses may only serve to make matters worse. Poor responses have been known to draw attention to negative reviews, boost SEO, and make a review more prominent in search results.

    At the end of the day, an experienced internet defamation attorney can help you craft the best possible response to a negative review.

    If you are a medical professional, make sure to read our blog post, “How to Respond to Negative & Fake Patient Reviews of Doctors“.

    What Should You Do If You Get Sued For A Bad Review?

    While most of this article revolves around how a business can respond to negative reviews, it is worth briefly addressing the other perspective.

    If you are accused of leaving a defamatory negative review, you have legal options as well. It is best to contact an internet defamation attorney for legal advice as soon as possible to protect yourself.

    Seeking Legal Help to Sue Someone For a Bad Review

    If you are struggling with negative online reviews, it is important to contact an internet defamation attorney. While all attorneys must attend law school and pass the bar, most attorneys practice within different areas of law.

    Contacting a divorce attorney over an online defamation issue is not likely to yield positive results (unless they refer you to a defamation attorney).

    There are even differences among defamation attorneys – some defamation attorneys focus on slander or media libel, while others have carved a niche in the realm of online defamation, including consumer review removal.

    Every legal issue requires specific knowledge, tools, and experience. It is important to work with an attorney and law firm that is familiar with the area of law suited to your needs. Retaining an online defamation lawyer can increase your chance of success while mitigating risks.

    Let’s Tackle Bad Reviews Together

    If someone leaves a defamatory or fake review about your business, you are well within your rights to sue them. But, deciding whether a lawsuit is your best course of legal action can be a difficult determination.

    At Minc Law, we have helped countless businesses address false and defamatory reviews from all online platforms. We have the experience necessary to tackle any fake review about your business.

    ★★★★★

    “I had a great experience all around with this firm. The paralegal, Dayra, was very responsive and helpful in coordinating zoom meeting within 24 hours. I then met with Brinton Resto and Andrew Stebbins. Both lawyers were knowledgeable and helping explain what I could expect from them as a law firm. They took care of my issue quicker than even I could expect! If I EVER have any problems with online defamation again, I will be calling this group for sure! Thank you Brinton, Andrew and Dayra!”

    Katherine W., Sept 18, 2020

    To find out whether suing over a bad review is the right choice for your business, contact us for a free consultation by calling (216) 373-7706, speaking with a Chat Representative, or filling out our online contact form.

    Contact Minc Law

    If you are the target of fake and negative reviews on Facebook, we recommend checking out our article dedicated to the subject by clicking the link: How to Remove a Bad Review on Facebook.

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