For most small business owners, consumer review websites like OpenTable.com are critical for establishing and maintaining a good business reputation. For consumers, these websites are the go-to tool for researching the local businesses where they will spend their money and to voice their opinions (good and bad) about those establishments. These sites, however, can pose a substantial risk to the inattentive business owner who fails to maintain a positive online reputation or is targeted by dissatisfied customers (fairly or unfairly). Poor reviews on one of these sites can destroy the small business dependent on word of mouth marketing. And once a review is posted, a business owner’s options to mitigate are severely limited.
The First Amendment protects a consumer’s right to post statements for the public to view – be they negative or positive, anonymous or not. It does not, however, protect defamatory statements – false statements, stated as fact, about another, that have been communicated to a third person, with intent or negligence, and some harm done to the subject person or entity.
So what do you do if you are a business owner who believes that someone has unfairly posted false statements on one of these review sites that has damaged your business?
In the past several months businesses around the country have been fighting back to protect their online reputations by going after the reviewers, the websites that host the reviews, or both. In a recent Virginia case, one business, convinced that several anonymous negative reviews were falsely posted by competitors, won an appeals court decision to enforce a subpoena on Yelp to divulge the identities of the anonymous reviewers. Although Yelp has appealed to the Virginia Supreme Court, if the decision stands, the business will likely be able to file defamation suits against the fraudulent posters for damages and injunctions requiring the posters to remove the reviews – if it is discovered that the statements were, in fact, false.
“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This means that review websites are not considered “publishers” of any third-party comments found on their website and thus cannot be found liable for libel for these statements. However, other creative means of getting false reviews taken down have been recently employed and have led to some promising developments. One Massachusetts attorney, for example, has received a court ruling granting him the copyright ownership of a negative comment containing defamatory statements about his law practice which a website refused to remove. He now can presumably sue the website in order to take the offending comment down, but whether this tactic is ultimately successful will be interesting for free speech advocates and individuals who rely on social media and the word of mouth promotional power of the internet for their businesses.
There isn’t a tremendous amount of case law on the issues which arise when free speech rights conflict with a business’ right to protect its reputation. But as the Courts grapple with these emerging issues it is important for small businesses to remain vigilant and closely monitor online review websites and to remember that there are options available to protect their online reputations.
If you have questions about online business reputation protection, contact the business attorneys at The Jacobs Law, LLC today. We can help you protect your business interests.