You found a cockroach melted into the cheese of your pizza, the car rental place doesn’t have the car you reserved, the moving company managed to “lose” a box of your family heirlooms? Consumers who post online reviews to warn others of unpleasant experiences can themselves become the target of a lawsuit—if they aren’t careful.
Online commenting is increasing in popularity. Yelp says that the number of cumulative reviews on its site grew 41% to more than 42.5 million, from the second quarter of 2012 to the second quarter of 2013. And the number of unique visitors to the site grew 38% year over year to approximately 108 million. Yet in this case there isn’t safety in numbers. Reviewers can—and do—get sued, typically for defamation, if they make a false statement of fact that damages the company’s reputation. Just recently, Dublin-based airline Ryanair brought lawsuits against some individuals who the airline says unfairly questioned its attitude toward safety in an online forum.
“Organizations can sue when people say knowingly and recklessly false things,” says UCLA constitutional law professor Eugene Volokh. “This applies whether the plaintiff is an individual or an organization.” Even consumers who post anonymously aren’t immune: A company may be able to uncover the commenter’s identity by getting the account information or IP address from the review site, Volokh adds. “Often these suits are meritless,” filed simply to get the consumer to remove the negative review, says Evan Mascagni, an organizer for the Public Participation Project, which is trying to pass legislation that would protect people who are sued by companies for complaining online.
There isn’t clear data on how frequently consumers get sued over negative reviews. Las Vegas-based attorney Marc Randazza, who has defended a number of defamation and first amendment cases, says it is so common it happens “nearly every day.” Volokh estimates that such lawsuits are still relatively rare—hitting fewer than 1 in 10,000 consumer reviews with false statements. Indeed, businesses have many reasons they wouldn’t want to sue, even for a negative review, including the fact that defamation suits are expensive and difficult to win and that they can be public (so the negative comment—whether true or not—might end up as a media headline), writes Kristen Whisenand, a spokesperson for Yelp.
What can consumers do if they get a letter from a company threatening them for posting a negative comment? First, get an attorney, says Mascagni. (Volokh recommends calling the Electronic Frontier Foundation for suggestions on finding one.) Look at your homeowners policy, as many insurers will cover legal fees—as well as a damages award, if you’re found liable, or a settlement if you decide to settle—in the event of a defamation suit, says Volokh. Go over your state’s anti-SLAPP laws (short for Strategic Lawsuit Against Public Participation), which outline the protections you have as an online reviewer against these kinds of actions (about half of states have them, says Mascagni). The website anti-slapp.org offers a list of state anti-SLAPP laws. In some states, if you bring a motion within 60 days of the lawsuit, you may be able to get the case dismissed quickly and the company to repay your legal fees, says Mascagni.
If you’re going to write a negative review online, “be sure to save your records and notes from what happened,” says Randazza, as you might need these in the event that the business does sue.
Make sure the review is either your opinion or factually accurate—for example, that the food tastes bad or the service was slow. “The truth is your defense,” says Randazza.
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