Bad online reviews can have devastating effects on businesses and their bottom line. Fortunately, there are circumstances in which it is possible to compel removal of the review(s), unmask the identity of the poster (if anonymous), and obtain compensation for the damage caused. The above are commonly accomplished by filing a negative online review lawsuit.
However, you can only sue over a bad online review if the review is defamatory or constitutes extortion or blackmail. Filing a lawsuit over a negative review can be broken down into the following steps:
- Consider possible defenses to your claim that the reviewer may rely on,
- Determine the proper jurisdiction and court to file your lawsuit,
- Draft a legal complaint with certain considerations in mind,
- Comply with all pre-lawsuit filing requirements such as state-specific notice and retraction statutes, and
- Serve your complaint on the defendant.
At Minc Law, we have extensive experience representing businesses and professionals who have been targeted by fake online reviews and pseudonymous internet attacks. We have worked with hundreds of businesses to efficiently remove negative and fake reviews posted on major review sites such as Google, Yelp, and other popular review platforms.
In this article, we will discuss:
- The impact bad reviews have on a business,
- When bad reviews are legally actionable,
- How to prove your case for unlawful reviews, and
- The steps for filing a lawsuit.
What Do Online Reviews Do For a Business?
In today’s digital age, obtaining online reviews is an essential part of doing business. Positive reviews can help attract new customers, while bad reviews can dissuade potential customers from doing business with a company. A 2022 ReviewTrackers report found that 94% of participants cited negative online reviews as a primary factor in their engagement or avoidance of a business. The same report also found that businesses struggling with as little as a single negative review may risk losing up to 22% of their pre-existing and potential customer base.
In a nutshell, reviews can make or break a business. Positive reviews go a long way toward building trust in a company’s products and services, while negative online reviews repel customers – hurting a business’s bottom line and longevity.
What a Bad Review Can Do to a Business
The importance of online reviews for a business and its future success (or decline) cannot be overstated. Bad online reviews can cost a business dearly. Not only can they discourage potential customers from using a company’s services, but they can also lead to a drop in search engine rankings (making it more difficult for customers to find a business).
In some extreme cases, negative online reviews can even cause a company to go out of business.
What Should You Keep in Mind When You Find a Bad Review About Your Business?
While bad reviews are troublesome, they may be seen as a right of passage for any business. If you are in business long enough, you will receive a negative review at some point. Keep this in mind if your business is the target of a bad review and try not to panic.
There are plenty of options available for responding to and removing bad reviews that do not necessarily require a lawsuit. For instance, you may be able to get an unwanted review removed by flagging it to the platform for ToS violations, reaching out privately to the customer to address their concerns, or by employing public relations strategies to obtain more positive reviews.
Finally, it is important to note that legal and medical professionals must consider confidentiality and ethical obligations when responding to and removing online reviews. Proceed with caution when responding to bad reviews and make sure never reveal confidential information. As a general rule of thumb, it is best to reach out to patients or clients with a private phone call rather than responding publicly on a review or social media platform.
Identifying Fake Online Reviews – Trust Your Gut
Many businesses also find themselves the target of fake reviews – that do not reflect a genuine marketplace interaction and experience of any of your customers, consumers, or clients. If a review appears fake, it probably is.
You know your business better than anyone else and can usually spot reviews that are not genuine. To spot fake online reviews, we recommend:
- Consulting your business records to confirm the legitimacy of the marketplace interaction,
- Analyzing the user’s account behind the review for a suspicious profile name or language,
- Looking at the timing of the review, and
- Keeping an eye out for signs it was a “professional hit-job” by a competitor or agency.
To learn more about fake reviews and your removal options, check out our comprehensive resource, “How to Spot & Remove Fake Reviews.” In the article, we explain how to spot fake reviews as well as how to get them removed from the internet so that you can preserve your online reputation.
Who Can You Sue Over a Bad Review?
One of the most common questions clients ask is “Who can I sue over a bad review?”. Simply put, the individual behind the review. While the individual who left the unlawful review can be sued, the hosting platform where the review was posted (e.g., Google Review, Yelp, etc…) cannot be sued for third-party content posted. Section 230 of the Communications Decency Act provides immunity to hosting platforms for content posted by third-party users, meaning there is no point in trying to sue a platform.
You can even sue the individual who left the bad review, even if you are unsure who they are. There are legal and investigative tactics to uncover the identities of anonymous posters and reviewers, enabling you to sue defamers and extortionists even if they try to hide their true identities.
When Can You & When Can You Not Sue Over a Bad Review?
As explained above, not every negative review is legally actionable. There are two core situations when you can sue over a bad review:
- When the review is defamatory, or
- When the review attempts to extort or blackmail a business.
What Constitutes a Defamatory Review?
A customer review may be considered defamatory if the reviewer falsely asserts that they were a legitimate customer or fabricates their experience. Reviews that detail a legitimate experience with your business are not legally actionable.
For instance, if a reviewer posts that they had a bad experience with one of your waiters, you likely cannot sue over the review as long as the reviewer’s experience was authentic. Likewise, a statement of opinion, “I didn’t like the food,” is not legally actionable (unless combined with a false assertion of fact), because it cannot be proven true or false.
However, if a reviewer lies and states that your assistant smacked them in the face when this did not in fact happen, this likely crosses the line into defamation territory. Individuals do not have the right to fabricate stories whole-cloth in an effort to damage your business. They do have the right, though, to leave an honest review of their interaction.
Genuine Reviews Are Protected Under the Consumer Review Fairness Act
Specifically, the Consumer Review Fairness Act (CRFA) of 2016 protects a consumer’s right to recount their legitimate experience with your business, even if that experience was negative. It is worth noting that the CRFA prohibits businesses from using non-disparagement clauses in consumer contracts if the customer did not have the ability to negotiate the contract.
In general, the CRFA prevents businesses from trying to contract their way around bad reviews. If you attempt or require clients to sign a contract waiving their right to leave bad reviews, that provision of the contract will not likely hold up in court.
Even attempting to contract around bad reviews could lead to trouble with the Federal Trade Commission (FTC), so be very cautious when using non-disparagement clauses.
Who Can You Sue Over a Bad Review & What Do You Need in Order to Do It?
As noted above, you can sue a reviewer if their review is defamatory, or attempts to extort you and your business, even if you are unsure who they are. You cannot sue the platform where the review was left, such as Google or Yelp.
To successfully sue over a bad review, you will need to gather and preserve evidence of the unlawful review. First and foremost, take a screenshot of the unlawful review, including the date it was posted and the URL. Screenshot any interactions with the review, such as likes and comments, because that can help establish the impact the customer review had on your business.
Make sure to keep records of any losses your business experiences, like a decrease in customers and foot traffic, an increase in canceled appointments, and any reduction in profits or damage to your bottom line. You will need this evidence to show that damage to your business’s reputation results from the unlawful review.
What Should You Be Aware of if You Are Considering Suing Over a Bad Review?
If you are considering suing over a bad review, there are countless considerations to keep in mind. First, filing a lawsuit may not be the best course of action for your specific online review matter. Litigation may be expensive, time-consuming, and stressful.
Fortunately, there are non-legal alternatives to litigation that can be equally effective in getting an unwanted review removed such as utilizing alternative dispute resolution (ADR) or online reputation management services.
Bad online reviews are not always worth suing over. For example, if you have one negative review amid hundreds of positive reviews, the single negative review is unlikely to have a dramatic effect on your business. In such a case, litigation probably is not the best course of action.
Additionally, most available legal claims have very short statutes of limitations. Defamation lawsuits, for instance, usually must be filed within one year of publication. This means most plaintiffs have a very limited amount of time to decide whether or not to file a lawsuit over a bad review.
By working with an experienced internet defamation attorney, you can avoid many common missteps typically made in the course of a lawsuit, such as:
- Drawing more attention to the review you want removed (known as the ‘Streisand Effect’),
- Filing your defamation lawsuit in the incorrect legal jurisdiction,
- Having your case thrown out,
- Obtaining inadequate monetary and equitable relief, and
- Not maximizing relief via alternative claims.
What a Business Needs to Prove to File a Lawsuit Over a Negative Review
To effectively file a lawsuit over a bad review, you will need to prove that the review was defamatory, or attempted to extort your business. While many legal claims may be explored, fake and unlawful reviews typically give rise to a claim for defamation.
In most U.S. states, to successfully prove defamation, you will need to show the below four elements:
- That someone published a false statement of fact concerning you or your business,
- That was communicated or published to a third party,
- With fault amounting to at least negligence, and
- The statement resulted in damages to you or your business’s reputation.
What Are the Core Components That Need to be Present in a Bad Review in Order For the Business to Sue?
Below, we examine each of the four elements of a valid defamation claim, as you will need to prove each element to successfully sue for a defamatory review.
False Statement of Fact Concerning You or Your Business
First, someone has to communicate or publish a false statement of fact about you or your business. A false statement is one that is both unsubstantiated and unprotected by the law and its countless defenses.
The statement must also be “of and concerning” your business, meaning an ordinary, reasonable person would understand the statement to be about you or your business.
Communicated to a Third Party
The false statement must either be published (e.g., on a public review site such as Google My Business) or communicated to another third party. A statement only shared between the plaintiff and publisher will not give rise to a cause of action for defamation.
With Fault Amounting to At Least Negligence
The individual who published the fake review must have been at least negligent in determining whether their statement was true or false. If the statement was made about a matter of public concern or a public figure, however, a plaintiff will have to prove the publisher acted with actual malice or reckless disregard when publishing the defamatory statement.
The Statement Resulted in Damages
Finally, the statement must cause damages and harm to one’s reputation. Damages caused by a bad review typically include financial losses (and future losses), loss of customers, and expenses to mitigate the damage.
What is the Focus of the Lawsuit About a Bad Review?
The focus of a lawsuit over a bad review typically revolves around the falsity of the review. Because truth is an absolute defense to defamation, a plaintiff must show that the review did not detail a factual experience with their business. The plaintiff must also be able to prove the review was not a mere opinion, otherwise, the review will not be actionable.
What Else Should You Be Aware of When Filing a Lawsuit Over a Negative Online Review?
There are countless pitfalls you need to be aware of before filing a defamation lawsuit over a bad review. Lawsuits are public, and can sometimes draw more attention to the very content you are trying to get removed – a phenomenon known as the Streisand Effect.
There are also important legal considerations to keep in mind when filing a lawsuit. Lawsuits must be filed in the right jurisdiction, defendants must be served with notice of the lawsuit, and there are often multiple pre-suit requirements, such as giving the defendant an opportunity to retract their statement and providing them adequate notice of the impending suit.
In litigation, nothing is certain. It is possible to comply with all legal requirements and still lose a case. Lawsuits should only be filed in the most serious of circumstances when all other non-legal alternatives have failed (or would be ineffective).
Steps to Filing a Lawsuit Over a Bad Review
Defamation laws differ by state, so there is no one-size-fits-all way to file a defamation lawsuit. In most states, however, it is best to follow these six steps when filing a defamation lawsuit:
- Assess whether you have a valid claim,
- Consider possible defenses to your claim and ways to overcome them,
- Decide where to file your lawsuit,
- Draft a legal complaint,
- Comply with all pre-suit filing requirements, and
- Serve your complaint on the defendant.
What Sort of Evidence Do You Need to Gather in Order to File a Lawsuit Over a Bad Review?
First, take a screenshot of the review or use preservation software like Page Vault to capture the review, time and date, and URL. If you can, create a timeline of events occurring before and after the review, starting with your business’s interaction with the customer (if applicable), and detailing an impact on your business after the review.
If others interact with the review, by liking or commenting on the review, preserve evidence of the interactions. This will help prove that the statement was published to third parties, and could show some of the damages faced by your business, particularly if others comment on the review.
Finally, gather evidence of any damages caused to your business. Damages might take the form of physical symptoms like anxiety attacks, depression, and high blood pressure. Damages also typically include financial losses, such as canceled appointments, reduced revenue, and expenses incurred to mitigate the harm caused by the review (e.g., legal fees).
What Are the Steps to Filing a Lawsuit Over a Bad Review?
Knowing how to file a lawsuit in advance can reduce the risk of pitfalls down the road. Fortunately, there are some simple steps that, if followed, can increase your chances of legal success.
Assess Whether You Have a Valid Claim
Make sure the review meets the standard for a legal claim, either for defamation, extortion, or blackmail. If you cannot prove that the review is unlawful, you will not succeed in court.
Consider Possible Defenses to Your Claim
Once you are sure the review meets the standard for legal action, you will want to consider any defamation defenses available to the defendant. Are you filing suit within the statute of limitations? Can the defendant claim that their review was truthful or a matter of opinion? Each of these common defenses to defamation can result in your case being dismissed.
Decide Where to File Your Lawsuit
Defamation laws vary by state, so it will be important to ensure you are filing your lawsuit in the best possible state. Fortunately, defamation plaintiffs usually have a few options when deciding where to file suit.
You may be able to file in the state where your business is located, where the defendant is located, or where your business experiences the most damages, for instance. Some states have laws that are more favorable to defamation plaintiffs, so it is important to carefully consider which jurisdiction is the best for your lawsuit.
Draft Your Legal Complaint
To file any lawsuit, one must file a document known as a legal complaint. Generally speaking, a legal complaint must contain the following six major components:
- Identification of the parties to the lawsuit,
- Identification of the jurisdiction,
- Factual allegations,
- Claims for relief,
- Relief requested, and
- The type of trial requested.
An experienced internet defamation attorney will be able to assist in drafting a complaint that outlines the major facts of your case and reduces the risk of dismissal.
Comply With All Pre-suit Filing Requirements
Some states specify that plaintiffs must take certain actions before filing a lawsuit. For instance, plaintiffs filing a lawsuit in Michigan must first give notice to the defendant before filing a lawsuit. In Texas, plaintiffs must send defendants a retraction demand letter before they can sue for slander or libel.
Serve Your Lawsuit on the Defendant
Finally, you must serve the defendant with a copy of the legal complaint once you have filed a lawsuit. While each state has its own service requirements, most require that the defendant be given a copy of the complaint within 30 days after filing suit.
What Should You Avoid Doing During the Lawsuit & Why?
During any lawsuit, lawyers will advise their clients not to talk about the lawsuit publicly. Discussing the lawsuit publicly could hurt your chances of legal success and even give rise to potential counter-suits.
This also means you should not communicate with the defendant once the lawsuit has been filed. Leave any communication to your lawyer – they know how to deal with defendants (and their counsel) in ways that will not open you to potential liability.
We Can Help Your Business Remove Fake Reviews
We know how devastating fake and negative reviews can be for a business owner and business. Receiving a negative review is inevitable in today’s digital landscape. Approaching negative and fake online reviews with a strategic game plan can set your business apart from competitors and enable you to flourish. However, we do not recommend approaching the removal of negative and fake online reviews online.
At Minc Law, we have extensive experience identifying fake online reviews, unmasking anonymous and pseudonymous reviewers, and achieving complete removal of the review(s). We can also help legal and medical professionals navigate the ethical and legal minefield associated with responding to and removing online reviews.
“Minc Law and Dan Powell worked closely with us to get defamatory material removed from social media sites. We would not have been able to get this accomplished without them. They are true professionals, and have the resources and skills to guide clients through the process to a successful resolution.”
Jen Duncan, March 4, 2022
If you or your business are the targets of fake online reviews, contact us today to schedule your initial no-obligation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our contact form.