When Are Online Reviews Considered Defamation? Featured Image

When Are Online Reviews Considered Defamation?

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In a perfect world, every review of your business would be a glowing five-star celebration of your product or services. However, that is far from the reality in today’s digital landscape, where any customer or client with an internet connection, genuine or not, can post an online review of your business. Not all of these reviews are authentic or accurate and it can be difficult to know when exactly they cross into the territory of defamation.

Not all negative online reviews are defamatory. An online review is considered defamation when it does not reflect a genuine marketplace interaction; when it is a false statement of fact, communicated to a third party, made with at least negligent intent, that harms your business’s reputation.

Our experienced team at Minc Law has represented hundreds of businesses that have been targeted by anonymous online attacks and false reviews. We can help you remove fake, negative reviews posted on popular review platforms like Google and Yelp.

In this article, we explore the importance of online reviews for businesses and what kinds of reviews are considered defamatory. We then explain how to determine if an online review constitutes defamation—and if so, how to address and remove it.

Importance of Online Reviews For Businesses

In today’s digital age, a positive online presence is critical for staying competitive and keeping your business’s doors open. Having a neutral online presence is not enough; you must take proactive steps to protect and bolster your digital footprint.

The Role of Online Reviews in the Digital Age

Reviews are a potent kind of word-of-mouth marketing. Your past customers can influence future customers’ decisions with their honest opinions of your products and services. Instead of building purchase decisions based on billboard signs or newspaper ads, consumers can access real-time recommendations from legitimate customers worldwide.

Word-of-mouth marketing like online reviews is the most important factor in 75% of consumers’—and 92% of business-to-business buyers’—purchase decisions.

It is estimated that 27% of consumers consider positive online reviews to be a deciding factor in whether they reach out to a business. And of those that research a business’s online reviews, 90% will take those reviews into account when making a buying decision.

How Do Online Reviews Impact a Business in Today’s Digital Landscape?

A negative online review’s effect on your business largely depends on how many reviews you have in total. If you have hundreds (or thousands) of positive reviews, a few negative reviews will do little to harm your overall reputation.

In fact, a small number of negative reviews can help your reputation improve. Customer engagement platform Reevoo estimates that more than two-thirds of consumers place more trust in a brand with both positive and negative reviews.

If your brand has only glowing reviews, potential customers may become suspicious that you have manipulated your profile.

However, if you have a small number of reviews to start with, a negative review can have a much bigger impact. Your star rating is an average of your reviews, after all—so one one-star review and one five-star review result in a 2.5-star average rating for your profile.

And if your average rating drops, it significantly affects your visibility to new customers. For instance, 88% of travelers in the hotel industry filter their search results for an average star rating of three or higher.

Of course, the more negative reviews you have, the worse they affect you—no matter how many reviews you have overall. Multiple bad reviews pointing out the same flaw or issue can appear as a red flag to potential customers.

Please see our comprehensive guide addressing the importance of online reviews for businesses for further reading.

What is Considered Defamation?

Because the definition of (and consequences for) defamation can vary from state to state, it may be difficult to know what is and is not defamation. However, most states require that a plaintiff prove four (sometimes five) elements to succeed in their defamation claim.

We discuss these below.

What Elements Must You Prove for Defamation?

To prove defamation successfully in most U.S. states, you must demonstrate the following four elements:

  • The perpetrator made a false statement of fact about your business,
  • The false statement was communicated to a third party,
  • The perpetrator acted with at least a negligent level of intent, and
  • The statement harmed your business’s reputation.

A “false statement of fact” means a statement that is verifiably false—in other words, not true, and not an opinion. A review that reflects a customer’s real experience (and is, therefore, true) is not defamatory. Neither is a review that simply states an opinion, such as: “This restaurant’s food tastes terrible.”

You must also be able to show how your business has been harmed due to the negative review. If the review is considered so inherently damaging that it constitutes defamation per se, damages may be presumed; regardless, proving your business suffered revenue loss after the review can strengthen your claim.

Internet Defamation lawyer Checklist

What Are the Two Types of Defamation?

Defamation is an umbrella term that encompasses both libel and slander.

Libel is written defamation, while slander is spoken defamation. One way to remember the difference is to note that slander and spoken both begin with “s.”

In either case, the false statement must be published or spoken to a third party. If the speaker only communicates the statement privately to the subject, that statement may be offensive—but it is not defamatory.

Defamation can be both a civil and a criminal offense. Victims may choose to bring a civil lawsuit against the perpetrator. In some cases (depending on the jurisdiction and the extent of harm caused), the defamer may also be subject to criminal charges.

Is a False Online Review Considered Libel or Slander?

Because online reviews are written, and preserved in a tangible medium, they are classified as libel. While both libel and slander are forms of defamation, it is important not to confuse the two.

Depending on the jurisdiction, slander and libel often have different statutes of limitations and may require different legal strategies for an effective response.

When Does a Negative Online Review Cross the Line & Become Defamation?

A negative review about your business is never pleasant to read. But just because a review is negative—or even harmful to your bottom line—it does not mean the post is defamatory.

In this section, we distinguish between negative and defamatory statements. We then provide common examples of defamatory and non-defamatory business reviews.

Understanding the Difference Between a Negative Review & Defamatory Review

Not all negative feedback you receive about your business is defamatory.

If a real customer writes a bad review detailing their real experience at your establishment, they are perfectly within their rights to do so. For example, “The waitstaff is rude and the food tastes terrible” may reflect a customer’s honest opinion. While reviews like this are aggravating to read as a business owner, they are generally not actionable for defamation as this is their opinion. Opinions can differ from person to person which is why it’s considered part of freedom of speech.

A harmful review becomes defamatory when it contains lies or exaggeration of the truth. Perhaps one of your competitors or a disgruntled ex-employee leaves a fake review with the intent of harming your company’s reputation. Or a real customer makes false claims about their experience in your store. If the reviewer lies about being a customer—or fabricates an experience with your business—you may have a defamation claim.

The perpetrator’s intent plays a large role in defamation. Was the reviewer intending to harm the business by leaving a defamatory review? Or were they a real customer who left an opinion that happened to cross the line into defamation?

Some defamation occurs unintentionally when a reviewer exaggerates without intending to destroy your reputation. Other reviews are obviously fake and malicious—and pave the way for a much stronger defamation claim.

Opinion vs. Fact: Non-Defamatory vs. Defamatory Reviews

When determining whether a statement is defamatory, it is crucial to understand the difference between opinion and fact. Opinions are subjective and cannot be proven true or false. Statements of fact are objective and can be either confirmed or debunked.

Opinions are generally protected as freedom of speech by the U.S. First Amendment. Therefore, a negative review expressing an opinion about your brand’s employees, products, or services is likely not defamatory. Stating that “the customer service employees were unprofessional” may harm your reputation, but it is an opinion—and therefore not defamatory.

Statements of fact, on the other hand, are not protected by the First Amendment. If a statement of fact about your business is false and harmful, it can be considered defamatory. For example, “the CEO has a history of embezzlement” can be proven true or false—and if it is false, it is likely defamatory.

It is perfectly acceptable for reviewers to publish their opinion of your business, regardless of if it is positive or negative. But intentionally publishing a false statement of fact—in other words, a lie—crosses the line into defamation.

What Are Examples of Non-Defamatory Reviews?

Say a customer writes a review of your hotel that says, “I was disappointed with my stay at this hotel. The room was small, and the air conditioning didn’t work well. However, the staff were friendly and helpful.”

This review is negative but does not cross the line into defamation. It contains opinions based on the customer’s personal experience, and it does not contain any false statements of fact that could harm the hotel’s reputation.

In another example, say a customer writes a review of your hair salon that says, “I didn’t love the haircut I got at this salon. It wasn’t quite what I had asked for, but the stylist did try their best to fix it.” This review is also negative but does not qualify as defamation because it is a subjective opinion based on the customer’s personal experience.

While the customer did not have a positive experience, they did not make any false statements of fact that could harm the salon’s reputation.

In both of these examples, the reviews contain negative feedback but do not include any false statements of fact about the business being reviewed. They express the customer’s personal opinions and experiences without making claims that can be disproven.

Finally, a one-star review with no explanation is generally considered a statement of opinion. While frustrating, a textless one-star review from a real customer cannot be proven true or false; therefore, it is not defamatory.

Negative reviews can help businesses by providing feedback and areas for improvement. As long as they do not cross the line into defamation, they are a valuable part of the online review ecosystem.

What Are Examples of Defamatory Reviews?

Say a customer’s review of your restaurant says, “I got food poisoning after eating at this restaurant, and I heard from someone else that they got sick from the food too. I also heard from someone else that the kitchen staff uses expired products.”

This review is defamatory because it implies that the restaurant is unsanitary and unsafe and that it caused the customer and others to become ill. Unless the customer can prove that the restaurant’s food did indeed cause them to become sick, making such a statement could be considered defamation.

Say a client writes a review of your law firm that says, “This lawyer took my money and didn’t do anything to help me with my case.” This review is defamatory because it implies that the lawyer engaged in unethical or unlawful behavior by taking the customer’s money without providing the promised legal services. If the statement is false and harms the lawyer’s reputation, it may be considered defamatory.

In both of these examples, the reviews contain false statements of fact that have the potential to harm the reputation of the business or individual being reviewed. It is important for individuals to be careful with their language when writing online reviews and to avoid making statements that are untrue or that could be perceived as defamatory. In both of these instances, the false statement of fact can be proven to be untrue, opening these reviews up to an actionable claim.

How Can You Prove an Online Review is Defamatory?

If your business receives a review you believe to be defamatory, it is crucial to first determine the review’s falsity. If the review reflects a genuine marketplace interaction with an actual customer, it is not defamatory.

Next, take steps to document evidence of the harm the review did to your business. Gathering as much evidence as possible will strengthen your claim if you decide to file a defamation lawsuit against the perpetrator.

Determine the Review’s Falsity

First, research the review and decide whether it came from a real customer and describes a real experience. We recommend taking the following steps:

  • Consult your business records to find a matching customer name, transaction experience, or customer complaint;
  • Examine the reviewer’s account activity for red flags of a fake review (like accounts made on the same day as the review or that have no activity outside of reviewing your business);
  • Look for suspicious account details like anonymized names (e.g., “Danny F.” or “Susan P.”), sarcastic monikers (“Seymore Butts”), or stock photos as profile pictures;
  • Look for timing patterns, since similar bad reviews published at regular intervals (daily/weekly/monthly) could be a sign of an organized attack against your business;
  • Check if the review was published in the middle of the night in your customers’ time zone (which is a sign the reviewer is not a real customer); and
  • Analyze the review’s language for red flags like inaccurate descriptions of your services/products, inflammatory rhetoric, improper grammar, and promotion of a competitor.

If you cannot find a match of the described experience or customer in your business records and the review matches any of the red flags listed above, the review may be false and defamatory.

Document Evidence of the Review’s Damage to Your Business

Next, take steps to preserve evidence of the harm your business has suffered due to the review. You should also report the review to the platform and investigate whether your business is being similarly targeted on other review sites.

You can take screenshots or use preservation software like Page Vault to save evidence of the review. Capture the review, the reviewer’s profile page, and the URL for both pages. You should also save any alerts you received of the review, such as a Google notification or a message from a third party.

Carefully note new sales and leads to spot any patterns or trajectories in your business since the review. It can be difficult to prove damages in a business defamation case unless you can offer statistical evidence of your business’s performance before and after the review was published.

Key Strategies For Businesses to Address Defamatory Online Reviews

While your business should always strive for a majority of positive reviews, the most successful review profiles contain a mix of good, bad, and mediocre reviews. After all, a 2- or 3-star review can provide more information about your business than a hyperbolic 5- or 1-star review.

However, some reviews go beyond the normal spectrum of honest customer feedback. If you receive defamatory reviews that damage your business’s bottom line, it may be necessary to take steps for removal.

In this section, we provide six tips for addressing defamatory attacks on review platforms.

Reach Out to the Reviewer & Request Removal

If the review was left by a real customer, the simplest solution is to resolve their complaint so that they remove the review themselves. Many disgruntled customers simply want to feel heard—so excellent customer service can be your greatest asset.

The best option is to contact the customer privately if you know their identity. Hear them out, offer an apology and/or refund, and make sure they understand that you are looking into the issue.

If you do not know the poster’s identity but you believe the review is legitimate, you can also try responding to the negative review publicly. This strategy is much riskier since responding poorly can do more harm than good. Defensive or hostile responses can draw more attention to negative reviews and encourage other reviewers to pile on.

And professions that are bound by confidentiality regulations—like attorneys and medical professionals—risk violating their clients’ privacy by even acknowledging the reviewer was ever a customer. It is best to avoid responding publicly at all. For more information, see our article: “How Doctors Can Respond to Bad Patient Reviews.”

If privacy regulations are not a concern for you, responding to the review can lead to its voluntary removal. Remember the following tips when replying:

  • Respond within a few days,
  • Avoid getting defensive,
  • Invite the reviewer to contact you privately to resolve the issue, and
  • Keep the reply polite but concise.

What Should I Do if the Review is True?

At the end of the day, there is not much you can do about a truthful review that you disagree with. After all, not all negative reviews are defamatory.

However, there are steps you can take to mitigate the effects of a truthful but damaging review. We address a few of them below.

Gather More Positive Reviews

If more of your satisfied customers leave positive reviews of your business, the less effect the occasional bad review will have. Implement a system for inviting customers to review your business. Make asking reviews a part of your daily routine.

Many brands include a link to the review site at the bottom of each email. You can also ask for reviews occasionally on social media or in your company newsletter. And it never hurts to include a QR code to your review platform profile at the bottom of receipts or on business cards.

Improve Customer Experience, Service, or Product

It is impossible to provide an optimal customer experience every time. But the more you work to improve your products or services, the less likely it is that a customer will be dissatisfied.

Focusing on providing the best customer experience possible will invite better overall feedback on review platforms.

Respond Accordingly

To cultivate a healthy review profile, it is important to respond to positive reviews regularly. Responding to positive reviews helps you reinforce your brand values, show readers that you care about customers, and engage with your audience. By replying to reviews, you show potential customers that you care about feedback—which encourages more positive reviews.

When responding to positive reviews, remember to keep the following tips in mind:

  • Thank them for leaving the review,
  • Respond to specific details of the message (“We are glad you enjoyed your time at the hotel pool so much!”),
  • Invite the customer to return and enjoy your services/products again, and
  • Add subtle self-promotion when it feels appropriate.

It is not always wise to respond publicly to negative reviews, however. Further, if you are a medical or legal professional, you may have specific privacy and confidentiality obligations to keep in mind before responding. To learn more, see our articles: How to Respond to Bad Reviews on the Internet and How Medical Providers Can Respond to Negative Reviews.

Report the Review for Terms of Service Violations

You can report the review to the platform where it was published—such as Google, Yelp, or Facebook—if it violates the site’s Terms of Service (ToS). Even non-defamatory reviews could potentially violate the review platform’s guidelines. For instance, most review sites do not allow reviews that contain personal attacks or off-topic content.

Every platform’s ToS and reporting procedures can usually be found on its homepage. If the review does not reflect a marketplace interaction, the platform’s moderation team may remove the review for you.

Send a Cease & Desist Letter to the Reviewer

Cease and desist letters can often be a successful alternative to a defamation lawsuit. When you know the defamer’s identity, you can send them a letter demanding they remove the negative review and stop any further defamation against your business.

However, any direct communication with the reviewer must be tactfully worded to avoid negative repercussions such as the Streisand Effect. It is best to work with an experienced attorney who can determine if a cease and desist letter is right for your situation (or if it will simply draw more unwanted attention).

File a Defamation Lawsuit

Due to near-blanket protections granted to online review platforms under Section 230 of the Communications Decency Act, many platforms will ask for a court order declaring that the review is, in fact, defamatory or false. If it is less than obvious that the review is fake, you may need to file a defamation lawsuit to obtain a court order to remove the content.

It may be necessary to file a lawsuit to compel the removal of the defamatory review. And if you do not know the culprit’s identity, you will need to file a John Doe lawsuit to identify the anonymous perpetrator first. Work with an experienced internet defamation attorney to assess your options and craft an effective legal strategy.

For further reading, please see our comprehensive resource explaining how to file a lawsuit over a bad review.

Monitor Other Online Review Platforms & Profiles

If a perpetrator attacks you on one review platform, they may do so on other sites as well. Check popular review sites like:

  • Google Reviews,
  • Yelp,
  • Facebook,
  • Amazon, and
  • Trustpilot.

You may also want to create a free Google Alert to track your business’s mentions online and/or purchase a reputation monitoring service that can notify you of digital threats.

Utilize Online Reputation Management Services to Mitigate Damage

Online reputation management (ORM) services can mitigate (not eradicate) the harm caused by negative reviews. These professionals use a mix of marketing, public relations, and SEO techniques to cultivate your desired brand image.

ORM services proactively monitor your reputation—which is easier (and more cost-effective) than reactively doing so. If your business is attacked severely by malicious actors, an ORM service can help you react, pivot, and rebrand effectively.

We Help Businesses Remove Defamatory Reviews

If your business is the target of a defamatory review (or a barrage of them), you have several effective options to remove them – including litigation. However, determining if a lawsuit is the most appropriate course of action for your business is not always cut and dry.

At Minc Law, we have helped thousands of businesses and individuals address negative and defamatory online content head-on, including consumer reviews. We have proven success in identifying anonymous reviewers, navigating the difficult issues presented with removing fake online reviews, and mitigating their damaging effects.

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