online defamation Archives - ARTAEV AT LAW PLLC

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 removed. Or whether they can “sue” the poster for “reputation damages.” This is especially common in the trucking industry, where Carrier411 hosts a platform that allows brokers and customers to review carriers. Often times, a dispute or a misunderstanding between a carrier and a customer leads to a “report” or a bad review on Carrier411 that causes frustration and may even result in lost business.

A negative review by itself is not always defamation. To win on a defamation claim in court, you need to prove: (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.

What does this all mean for the business owner faced with a negative review?

First, a successful defamation claim requires a false and defamatory statement. 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.

Second, there must be unprivileged publication. “Publication” just means dissemination to others – meaning third parties. 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, such as a legal filing with the court, a police report, or some other type of special protected communication.

Third, the false statement must be made with at least negligence. That simply means that the person making the statement either knows that it is false or does not bother to try to find out before publishing. Even if a person publishes a false statement about your business, they may not be liable if they consider it true based on a reasonable inquiry.

Fourth, there must be an element of damages. In business cases, this element is usually satisfied automatically, as damages to business reputation are considered actionable per se. However, actual damages are still critical and must be proven – 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.

Even if you can prove the four elements, there are practical factors to consider before filing a lawsuit. Are you prepared to bear significant litigation costs – thousands or even tens of thousands of dollars? Are you prepared to invest time away from your business to prove your case? Never treat litigation as an investment opportunity because no business owner makes money paying their attorney and spending time in court.

The good news is that there are other options besides litigation that you can discuss with your attorney. Often times, an informal discussion with a dissatisfied customer can solve the issue. A cease-and-desist letter can be effective as well. If the potential damages are significant, pre-suit mediation may be the most cost effective option to resolve the dispute.

One final note – in Michigan, defamation claims must be brought within a year of the event. Other states may have different deadlines, but if you think you may have a claim, talk to an attorney sooner rather than later.

Dan Artaev is an experienced business attorney who advises a number of domestic and international businesses on various topics, including defamation. Email us or call us to set up your free initial consultation.

It is 2024 and every business has an online presence – whether through a website, on Google, or on social media. It is more important than ever for business owners to know what can and cannot be said (i.e. posted) regarding their business online. In other words, can you sue to get that negative review off of Google? Or what about that irate ex-employee that keeps posting false information to your Glassdoor page? Can an overzealous freight broker’s post against a trucker on Carrier411.com lead to a lawsuit?

In a recent Michigan case that involved Carrier411, Penguin Trucking Inc. and E.L. Hollingsworth & Co., faced off in a business defamation case. The two companies were contracted for the same job at different rates by an outside third party. However, by the time the two companies found out about the scam, Penguin Trucking had already had the freight in its possession and was unable to make a deal with E.L. Hollingsworth for them to reconcile and both deliver the freight.

Since Penguin Trucking already held the freight, they decided to enter into a deal directly with the end customer for the delivery. Shortly thereafter, an E.L Hollingsworth employee posted a scathing report on Carrier411.com, a trucking monitoring service website. The employee wrote that Penguin Trucking “held [the] load hostage,” attempted “in-transit agreement modification,” and accused them of “unethical or deceptive business practices.” In any industry, potential customers are reluctant to do business with companies that have negative reports written about them, like those written on Carrier411.com. In the trucking business, Carrier411 reviews are especially crippling and can even destroy a smaller or startup business. Penguin Trucking experienced these adverse effects first-hand when it lost out on a contract with a shipper based on the FreightGuard. In litigation, Penguin Trucking proved not only that the online statements were false, but that the loss of the shipper contract was directly linked to the Carrier411.com review. Penguin Trucking was awarded $612,400 in damages for this lawsuit.

Michigan’s laws are clear about what constitutes defamation and what does not. Most other states have similar laws that protect against false statements that damage a business’s reputation. There are four elements to a defamation claim in Michigan:

A false and defamatory statement concerning the plaintiff;
An unprivileged publication to a third party;
Fault amounting at least to negligence on the part of the publisher; and
Either special per se harm or actual damages proximately caused by the statement.

For a more in-depth look at what each element means and requires, check out my latest article about protecting your online reputation.

If someone is posting intentionally false information about your company on the Internet (including a false FreightGuard report on Carrier411) you have a right to defend your company. An experienced attorney can help with various options short of litigation, such as sending a cease-and-desist letter and negotiating a resolution on your behalf. If litigation does become necessary, we can also provide the necessary support and consultation to take your case before the proper court.

Have more questions? Contact our firm by email or call us today to set up your free initial consultation.