Protecting Your Brand Online: Is a Bad Review Defamation?

Following my previous article about online defamation, business owners frequently ask me whether they can “sue” Facebook or Yelp or Google, etc., to get a negative review of their business removed. Or whether they can “sue” the poster for “reputation damages.” This article addresses these questions, and is a more in-depth look at the elements necessary for a successful business defamation claim. Note that even if your particular case does not meet the standard for business defamation, there are related causes of action such a product disparagement and inference with contract or business relationship that may be actionable against the poster. If you would like to set up an initial consultation to discuss your case, email Dan for an appointment.

A negative review by itself is not necessarily defamation. Generally, you cannot go to court to get a negative review removed just because it is a negative review. Defamation (also sometimes referred to slander or libel, depending on whether the statement is spoken or written) consists of the following elements (1) a false and defamatory statement about the plaintiff; (2) unprivileged publication to a third party; (3) fault amounting to at least negligence; and (4) actionability per se or the existence of special harm. So what does this all mean for the business owner faced with a negative review or some other less-than-desirable statement about their business online?

The first element requires a false and defamatory statement to be made. This is the most commonly misunderstood element, but it is absolutely critical. A negative review – even if the business owner has a different side of the story, or does not agree with it – is not actionable unless it is actually false. A statement of opinion – even if negative – is not a false statement of fact because there is no such thing as a false opinion. That is an important difference, especially in the age of social media. A person may go on your restaurant website and freely post something like “I hate the atmosphere and I did not like the food here at all.” That is not defamation, even though it is a negative review. Rather, it is a statement of opinion. A good test is to ask: how am I going to prove that the statement is false? What types of evidence will I introduce to refute the “facts” that were posted? There is no evidence that you can introduce to refute a statement of opinion – in other words, the customer’s perception of atmosphere and the food is their own. If they did not like it, then it is their opinion, and they are entitled to it.

Also, the statement must be defamatory, that is injurious to your business reputation. A statement that is false, but is not negative or otherwise critical of your business is not actionable. For example, if a review says “This restaurant is located in midtown Detroit,” when in fact the restaurant is downtown, the statement is false, but not defamatory.

What are some examples of a review that contains false and defamatory information and therefore may potentially be actionable? Say someone posts on your restaurant Facebook page “I saw a rat in the kitchen the other day and there was a hair in my soup! Never eating here again!” If that information is false, you may actually have a claim. As I illustrated above, you have specific evidence to refute the false allegation of fact: you can introduce testimony from your staff that there was no rat and that there was no hair in anyone’s soup. However, if the review states something that is true or is an opinion – like “the wait was over 45 minutes long” (true) or “the drinks were overpriced” (opinion) – that is not defamation. Business owners also have a hard time with blended statements of fact and opinion – the classic example being “the waiter was so rude to me” or “the maitre’d harassed me when I complained about the wait.” Technically, whether someone was or was not “rude” is something that can be proven with facts, such as the testimony of said waiter. However, there is also the opinion component of the statement, which is the perception of impoliteness or rudeness. People can perceive the exact same situation differently, and therefore what is “rude” or “harassment” to one person is not necessarily objectionable to another. Of course, if the statement is objectively false – such as if the customer writing the review has never been to your restaurant – that is a different story.

The second element – unprivileged publication – is easier to understand. “Publication” just means dissemination to others – in other words, if false and defamatory statement is made to you, the plaintiff, and not to anyone else, it has not been published. Of course, if something is posted online, it is published. “Unprivileged” means that the statement is not made in the context of a protected communication – for example, if someone files a lawsuit and makes false and defamatory statements in the lawsuit, you cannot sue them for defamation because court filings are considered exempt. The policy encourages open judicial proceedings – and there are other remedies for false statements in a lawsuit, such as contempt of court and malicious prosecution.

Third, the claim requires “negligence” when the statement is made against a private person. That simply means that the person making the statement either knows that it is false or does not bother to find out before publishing. The only caveat here is that a higher standard applies if the target of the statement is a public person, but most private companies or their owners that are the targets of negative statements do not meet the public person standard.

Fourth, there must be an element of damages. In business cases, this element is usually satisfied automatically, as business reputation is considered per se actionable. However, one must still be mindful of any actual damages and be able to point to specific business lost or clients lost as a result of the statement – otherwise you may end up recovering only nominal damages. While punitive and exemplary damages, as well as attorney fees, are available under MCL 600.2911, there are no guarantees that they will be awarded. A case is always more persuasive if there are actual damages that are proximately caused by the negative post, review, or other published statement.

There are other factors to consider before filing a lawsuit. Are you prepared to bear significant litigation costs – thousands or even tens of thousands of dollars? While MCL 600.2911(7) does provide for attorney fees as part of the economic damages that may be recovered, there is still a risk that the court may not award them or that that losing party may be insolvent. Are you prepared to invest time away from your business to prove your case – to sit for depositions, testify in court, and provide your attorney with information and documents in response to the other side’s discovery requests? Never treat litigation as an investment opportunity because no business owner makes money paying their attorney and spending time in court.

One final note – defamation claims must be brought within a year of the event. MCL 600.5805(11) sets the statute of limitations at one year, so if you think you may have a claim, talk to an attorney sooner rather than later. And, as I stated at the beginning of this article, there may be other causes of action like product disparagement, contract interference, and other business torts that may be applicable to your specific facts. Just because the world is digital does not meant that business owners are without recourse for negative false statements about their business or unscrupulous competitors who may be spreading misinformation.

Dan Artaev is an experienced business attorney who is 100% remote and advises businesses across the great state of Michigan. Email Dan at dan@artaevatlaw.com or call or text to (269) 930-0254.

© 2020 Artaev at Law PLLC. All rights reserved.

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