Arriving at his warehouse last week Knott Faire, owner of Faire Carpet Cleaning, discovered yet another complaining critique posted on WELP: “Lots of hype, a mediocre cleaning and a hassle at the end. Don’t get tied up with Knott!” In over 75 previous reviews only 3 were slightly negative. Since the “hype” complaint, another dozen scathing complaints were logged. Believing that the negative reviews are from a competitor, not his customers, Knott called his trusty lawyer Icahn Ficksit for help. Icahn issued WELP a subpoena demanding production of identifying information and ISP (Internet Service Provider) addresses for the dozen offenders. Will Ficksit win?
In Virginia, yes; in Texas, no. The Virginia Court of Appeals held that a Yelp reviewer is generally entitled to First Amendment protection if the reviewer is critiquing a business they patronized; however, [i]f the reviewer was never a customer of the business, then the review is not an opinion; but is based on a false statement. Virginia only requires that Icahn Ficksit and Knott Faire show, among other things, that the WELP reviews “are or may be tortious or illegal,” or that Faire Carpet Cleaning has “a legitimate, good faith basis” to believe that they were the victim of actionable conduct.
On the other hand Texas courts require that a defamation plaintiff submit sufficient evidence to establish a prima facie case for each essential element of the claim in question, consistent with rules identified in the two related cases of Cahill and Dendrite. In other words, in Texas, to survive WELP’s challenge to Ficksit’s subpoena, Knott Faire would have to show some evidence creating a genuine issue of material fact for all elements of his defamation claim. Just saying that the postings might be tortious or illegal or that you are a victim is not enough. In other words, Texas businesses seeking personal details about website users – whether in an effort to silence online critics or otherwise – must lay out actual facts before such information is allowed to be obtained.
Anonymous Free Speech v. Right to Protect One’s Reputation
The right of free speech, including anonymous speech, is protected under the First Amendment, but this general protection relies upon an underlying fact assumption – that the reviewer was a customer of that company and the posted review was based on personal experience. If this assumption is false and the reviewer was never a customer, then the review is not an opinion. Instead, it is based on a false statement for which there is neither constitutional value nor constitutional protection. But, how much actual proof is required before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger? Courts must balance anonymous communication with the right to hold accountable those who freely defame individuals. Those defamers must face civil responsibility for their acts.
Tilting the Scales in Your Favor
Our advice on this subject of almost two years ago in Keeping a Good Name: Protecting Yourself From Internet Defamation is the same today. Consider carefully your options and the time and expense that are likely to be related to each. While, you really can sue someone for just about anything, there are other options to consider before pulling the pin on the litigation hand grenade.
· Be Proactive – consider releasing your side of negative information first. If it is reasonable, it will be believed. “Nip it in the bud.”
· Be Upfront – consider contacting and offering to meet with the online poster if the negative comments have already been posted. Be conciliatory.
· Apologize if Necessary – consider ‘fessing up to your mistakes. A quick apology is less painful and costly than years of litigation, and is likely to put you in a better light as one who owns up rather than appearing to be clueless and defiant.
· Negotiate to Get the Post Down – consider the cost to get it down. Words are forgotten. Even newsprint fades. The permanence of the web creates a major branding challenge.
· Own Your SEO (Search Engine Optimization) – consider creating your own content and drive the bad stuff down in search engine rankings. Only your worst enemy will look for dirt on you past the first Google search page. See Reputation Repair below.
And, know that there are those who believe that any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.
Managing your internet reputation is not a new idea. In fact Gray Reed regularly works with some of our clients on crisis communications and dealing with damaging or misinformation on the internet. There are also internet service providers and websites like Reputation Changer, Reputation Management Consultants, Integrity Defenders,and Online Reputation Management that promote their ability to clear negative search results arising from an internet search engine.
By the way, consumer-review websites—whether Yelp, Angie’s List, Google + Local, Yahoo Local Listings, or Amazon.com—are shielded from liability for defamation claims stemming from user comments under the Communications Decency Act of 1996.
Last month Tilting and Alex Fuller wrote about The Case of the Defamed Doctor – SLAPP’ing Down Defamation Cases in Texas and the Texas Anti-SLAPPing statutes (Strategic Lawsuit Against Public Participation) aiming to prevent businesses or other powerful groups from filing baseless lawsuits against their critics. Typically, these statutes promote speedy resolutions and charge all legal fees to the losing party. See also SLAPP Happy – Can a Business Sue a Customer who Gave a Bad Online Review?
See prior Tilting articles – Defamation Primer (2009) and When is a Tweet Not So Sweet? (2009)
Also check out – Defamation Law: The Basics