Are Fake Online Reviews Hurting your Business?
Find out what you can do about it.
- What can my Business Do to Stop Fake Internet Reviews?
- What is an Injunction?
- How Can You Identify a Person Who Posts Online Defamation about Your Business?
- Who Can You Hold Liable for Fake Negative Reviews?
- Can a Person Post a Comment Anonymously?
- What is the Process to Uncover an Anonymous Poster?
- Can I Sue the Website Where the False & Defamatory Reviews Were Posted?
- Can I Sue the User Responsible for Writing & Posting the Malicious & False Reviews or Attacks?
What to do if your Business is being Attacked by Fake Reviews
The Internet has become an essential part of our lives. Almost everything we do is connected to the Internet in some way or another.
When people want to go out to eat, they check the Internet for restaurants, menus, and reviews. When someone wants to find a trendy new store, they check the Internet for photos, prices, and reviews. When someone wants to get a haircut or find a person to cut their lawn, they go on the Internet for reviews. The common thread between all of these different uses of the Internet is the ability to find a review of a product or service.
While reviews are a wonderful way for people to give praise to their favorite businesses and services, it is also a way for people to air grievances they may have. While, some people have a legitimate reason to post a negative review, others do not and are only writing things about a person’s business and services as a way to hurt their business. Many of the popular review sites only require an email address and some basic information to make a post and some Internet users create fake reviews to attack businesses even if they do not have a reason to.
What can my Business Do to Stop Fake Internet Reviews?
What steps can you take if you find that your business is under attack from fake Internet reviews? Unfortunately, fake Internet reviews and websites that are designed to attack people are becoming more and more common. If you find that your business is being subjected to fake reviews there are a few things that you can do.
To begin, every review site has Terms of Service or TOS. A link to a site’s TOS can usually be found at the bottom of the website, although you may have to search through the website if it is not explicitly listed. Generally, the TOS will contain lists of things that the website allows users to say and do in their reviews. While each review site has different Terms of Service, many of the more reputable sites state that reviews which are personal attacks on an employee, defamatory, derogatory or attacks a person based on disability, race, ethnicity, religion or other factors, can have their reviews removed.
Depending on the website, if you contact a site because you believe a post has violated the terms of service, most websites will promptly remove the post. You may also choose to post a reply to the review publicly stating that you have requested it be removed as a violation of their TOS. However, if reporting the review to the website does not help there may be some legal actions you may be able to take.
The first step usually is to send a cease and desist letter, this letter is also known as a demand letter. Essentially, these letters inform the user that the user needs to stop and remove all negative reviews from the listed accounts or face future legal action. The next step you may choose to take could be filing an injunction.
What is an Injunction?
An injunction is a powerful legal tool that may stop a person from posting statements about you online. Essentially, an injunction is an order from the court that requires a person to do or to refrain from doing something, such as posting defamatory statements about you online. This is a very powerful legal tool, and it is one that the courts do not give out freely. Before you can receive an injunction from the court you will generally have to prove four essential elements.
- Ongoing damage-First, you have to prove some form of ongoing damage. To receive an injunction from the court, a business who wants to have content removed from the internet will have to show that their business or service will be harmed if the messages and reviews are allowed to stay on the internet.
- A probability of success on the merits– Second, you or your business will have to demonstrate you have a probability of success on the merits of the case. If you are trying to sue a person for defamation you will have to show that you are likely to win the defamation case.
- The balance of harm favors the person filing– The third element requires that you demonstrate you will suffer more harm than the person who posted the content. If a published statement is likely to cause long-term harm if not quickly removed, the statement may be a candidate for an injunction, provided that the other elements for an injunction are met.
- Public interest favors an injunction– Fourth, the public interest favors granting the injunction. When it comes to injunctions related to speech you will always have to contend with the First Amendment of the United States Constitutionwhich generally provides for freedom of speech. In order to protect the rights of citizens to speak freely, you will have to demonstrate that by removing the content the public would be better off than if the content had remained online.
An injunction is a powerful tool because it is a court order that the user and arguably the site that the post is on must follow. If a person does not listen to the court and defies their order they may be fined or even placed in jail.
Can You Find Out Who Is Writing Fake Negative Reviews About Your Company?
As a business owner, you understand the importance of online reviews. You understand that positive reviews can drive additional business to your establishment and boost profits.
However, you also understand that a fake negative reviews can cause significant damage not only to your company’s reputation but also to its bottom line. Therefore, you always strive to provide a stellar customer experience. For the few customers who may have had a bad experience, you do everything you can to ensure that their complaints are addressed and that they have an excellent experience the next time they come into your business.
After working with the unhappy customers and encouraging repeat visits, it comes as a surprise that there is a disturbing trend of negative reviews for your business. You wonder how is it possible that all of these customers are having bad experiences without you noticing any problems? Over time, you come to realize that these negative reviews are fake. You don’t know who is posting the false and defamatory reviews, but you want to get to the bottom of the situation and protect your business.
How Can You Identify a Person Who Posts Online Defamation about Your Business?
Identifying the poster of false and defamatory reviews can require a significant amount of legal work. Unfortunately for the targets of the defamation, most online review sites, user-generated content websites, and Internet service providers (ISPs) are protective of the identity of their users. Therefore, a multi-step approach to uncovering the identity of the poster is usually required.
To start, you will generally need to subpoena the website where the comment or review was posted to obtain the IP address of the poster. To obtain this information you will need to make a sufficient legal showing and secure a valid court order compelling the site to provide this information. If you are able to obtain the poster’s IP address you will then need to file a second subpoena with a court to force the ISP to link the IP address with one of its subscribers.
At this point, you will have the identity of the individual who made false negative postings about your business. You will still have to continue to engage in the legal process to hold this individual liable for his or her actions.
Who Can You Hold Liable for Fake Negative Reviews?
Many business owners want to know who exactly they can hold liable for the fake negative reviews. Many business owners think along the lines of the more defendants that can attach to a potential lawsuit and the deeper pockets those defendants have, the better. While this mindset isn’t totally off-base in many legal matters, there are certain unique aspects about online defamation that changes the legal thinking.
One of the unique aspects is Section 230 of the Communications Decency Act. It provides broad immunity for user-generated content websites including online review websites. These websites cannot be held liable for the content that others post on them. You can think about this immunity in the sense that you would not sue the phone company for another person’s fraudulent or misleading statements made over the phone. A similar principle guides here and lawsuits against the actual review site or other platform are almost certain to fail and may even create legal liability due to a counterclaim.
You can, however, hold the individual poster liable for his or her defamatory posts. In certain circumstances, it may make sense to take legal action to hold the party posting false reviews liable. For instance, when a rival business owner engages in a smear campaign against your business it may make financial and legal sense to hold the defaming party liable.
In other circumstances, it may make less sense to file legal action against the defamer and you may be better served by simply working to remove the false reviews. However, this determination often cannot be made until you identify the reviewer who is making false anonymous reviews.
Are Anonymous Reviews Legal?
Being a business owner in today’s digital age can be frustrating. You strive to provide your customers with the best service and take their feedback very seriously. What happens when someone leaves a review on your site that is anonymous? You may feel very frustrated because you are not able to directly address that person’s concerns. Additionally, you may be angry because a nameless person could post a fake or defamatory review which could injure your name and reputation. If you are wondering if people are allowed to leave anonymous reviews on your site, you are not alone.
Can a Person Post a Comment Anonymously?
Many online review sites encourage users to post reviews and comments about a particular business or service. Some of these sites will allow users to post their reviews anonymously. This can be troubling for a business because there is almost no way for the business to verify that this is an actual person or customer of the business. Unfortunately, it is fairly easy for people or for spammers to create multiple fake accounts and post a review on a business’s site. Previously, there was not much that a business owner could do except maybe comment on the review and encourage readers to not believe the comments. However, people have begun questioning if posting fake reviews anonymously was legal, and if a business or person who had a negative comment posted about them could have the comment removed or find the person’s identity to sue them for defamation.
Thomson v. Jane Doe
One of the court cases that has come to national attention in the past few months and years is the case of Thomson v. Jane Doe, which may point to the future legality of anonymous posting.
In the case of Thomson v. Jane Doe, Deborah Thomson a Florida family law attorney had a negative review posted about her on the popular website Avvo. Ms. Thomson was concerned that the post was not from a legitimate source, and asked Avvo for the identity of the poster. Avvo refused to release the name of the anonymous user so that Ms. Thomson could file a defamation suit, which prompted Ms. Thomson to file a motion to compel Avvo to comply with her request. The Washington State Court of Appeals denied her request stating that she had not met all of the requirements to bring a defamation case.
In their ruling, the court noted that the First Amendment protects the right of people to speak anonymously. The court also stated that while people are free to post anonymously online, the First Amendment does not protect defamatory statements.
While, Ms. Thomson may have lost because she did not demonstrate that she had been defamed, the Washington State Court of Appeals did note some other cases that had laid out procedures to identify an anonymous poster.
What is the Process to Uncover an Anonymous Poster?
One of the problems that the Internet and the courts in the United States is facing is that there is no singular law. As you may be aware, each state has its own laws in addition to the laws set by the federal government. However, in the case of Dendrite Int’l, Inc. v. Doe No. 3 the New Jersey intermediate appellate court set out a four-step process for determining whether to compel disclosure of the speaker’s identity:
- The trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.
- The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.
- The complaint and all information provided to the court should be carefully reviewed to determine whether a plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted . . . , the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
- Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.
While this may reflect the current state of the law in New Jersey, it is not necessarily the law across the United States. However, this case gives a certain framework that an attorney may be able to use if an anonymous user has defamed you.
Can You Sue for Damages to Your Business Reputation? [Malicious & False Reviews]
Launching, running, and growing a business requires an immense amount of commitment and discipline to see the endeavor through. Many entrepreneurs and small business owners have no shortage of “war stories” regarding the long, thankless hours they spent “in the trenches” attempting to gain traction for their fledgling company.
However, at some point for many companies, that hard work and dedication begins to payoff and satisfied clients’ word-of-mouth results in a steady stream of repeat business, referrals, and new business. For months business comes streaming through your doors, phone lines, and website until one day the inquiries suddenly stop.
At first, you are bewildered as to how this hard work and reputation you built evaporated overnight. You head home at night and decide to Google your company. To your shock and surprise, a litany of intensely negative reviews that attack you personally are featured on the first page of results. The posts on user-generated content review platforms call you a thief, liar, criminal, and many other things that cannot be reproduced in polite conversation. The false reviews have obviously been posted to attack your business and hurt your ability to attract new clients and customers. At this point, you simply want to get the posts removed and pursue legal actions for damages against all involved parties.
Can I Sue the Website Where the False & Defamatory Reviews Were Posted?
Many people who have some experience with the law may realize that even in the case of actionable defamation, there must be a party who can be held accountable for the wrongful conduct. Thus, many people think back to the basics they have heard or read about lawsuits and something about a defendant with “deep pockets” may spring to mind.
For purposes of recovery and collecting on a judgment, it is important to have at least one defendant that is known and solvent. In many cases, it can make sense to seek a responsible party who is capable of providing this type of relief. However, user-generated content platforms like Yelp, Facebook, Glassdoor, and others are a special case and receive certain special protections.
Under Section 230 of the Communications Decency Act, certain publishers who do not exercise editorial control receive safe harbor protection from liability for materials posted to their website. In other words, web sites that post user-generated content receive broad immunity from liability for the content of these posts.
While these sites receive immunity, many are willing to work with concerned business owners who are targets of abuse. Building a case and presenting evidence showing that the posts are false, malicious, and causing harm may spur the site to prevent further abuse of their platform.
Can I Sue the User Responsible for Writing & Posting the Malicious & False Reviews or Attacks?
While suing a user-generated content website is a near-surefire way to face a countersuit due to the protections provided by Section 230 of the Communications Decency Act, the same protections are not afforded to the individual poster. That is, the individual who posts or writes a defamatory account can be held financially liable for their malicious and false statements.
However, in many cases the original poster will use a pseudonym in an attempt to shield their identity and escape liability for their wrongful acts. However, there are methods where the identity of the poster can be revealed. In some cases, the website themselves may release the information upon a valid and sufficient showing by the victim.
In other cases, the victim of the defamation may file a John Doe lawsuit and seek a court order or subpoena to reveal the identity of the defendant. In any case, an experienced lawyer can help you identify the defaming party and pursue appropriate legal action to protect your business and reputation and to compensate you for damages.
Work with an Internet Defamation Removal Attorney
(to remove negative business reviews and harmful complaints from websites)
Good online reviews of your business can mean a better reputation, more customers, and more money. Unfortunately, the opposite is true with negative reviews. One bad review or negative star rating can ruin years of hard work spent distinguishing your business from a sea of competitors.
If your business has been attacked with fake reviews online by anonymous reviewers, the Internet defamation removal attorneys at Minc Law may be able to fight to protect your company. We can take steps to reveal the identity of the reviewer and discuss your options regarding holding the attacker liable for his or her actions. To schedule a free, no-obligation initial consultation call (216) 373-7706 or schedule a meeting online.