Today, I ran a Google search for the phrase “sued for online review.” The search engine returned 9.4 million results in 17 seconds. I’ve been running that search regularly for the last couple of years, and the numbers keep growing. Even assuming that the bulk of the references that the search engine is finding are duplicates of each other, it’s clear that businesses are fighting back with legal action when customers, patients, clients, and former employees post negative information online.
On one side of the question, we hear people assert that we all have a First Amendment right to share our opinions with the world — especially when we’re unhappy about a product or service.
On the other side, there are the business owners, doctors, lawyers, PR firms and others who are just trying to make a living when WHAM! Their reputation takes a hit from something posted anonymously online.
Sometimes what is posted is true – and sometimes it’s not. So the average Internet user assumes that it’s simple to tell when litigation is merited and when it’s not.
As a Quaker, I learned that “speaking truth to power” — that is standing up for what I believe in — is a basic tenet of my faith. In journalism school, I was told that truth is a valid defense in most libel or defamation claims. But is that defense absolute?
Probably not. Sometimes, the truth can be told in a way that brings liability along with it. When I worked as a journalist, I had editors and lawyers who reviewed my work to make sure that what I wrote was both accurate and presented in a way that wouldn’t invite litigation. I don’t have those extra layers of review and fact-checking when I use social media, post a review on Yelp, or write this blog.
When I looked at articles about people who were ordered to pay damages over an online review or comment, it became obvious that the reason for the damage award wasn’t that the person posting the negative comment said something they knew to be untrue. They lost because a judge or jury found that the person who posted the review engaged in “intentional interference with contractual relations” or “tortious interference”. You can get the correct legal definition of either term at Cornell University’s wonderful free online law dictionary.
In layman’s terms, they both mean that the plaintiff (a business or individual) is alleging that the writer of the negative review intended to discourage others from doing business with the plaintiff.
So, depending on where you live, there may be a legal difference between saying “I didn’t like the food at Deb McAlister’s” and saying “Don’t eat at Deb McAlister’s — the food is terrible.” There may even be a legal difference between saying, “Deb McAlister’s enchiladas made me sick” and “I got sick after eating enchiladas at Deb McAlister’s.”
Instead of taking one of the many options available to those who didn’t like what is being said about them online, more companies these days seem to be “suing first and asking questions later.”
I question that strategy. Suing over a negative review just insures that the words become enshrined in the public domain, through court records (public), news reports (public), and judgments (perhaps sealed, perhaps public). There are other alternatives that can resolve the issue less expensively, and more effectively, I think.
In the book I’m working on with David Coursey (Slimed Online: How to Get Your Reputation Back in Spite of Google) , we’re talking to some of the foremost reputation management experts in the country. Without fail, they have said that litigation should be a last resort – that putting a judge or jury in the position of having to decide what someone “intended” is a risky (and costly) way to manage your online reputation.
I’m actively seeking additional stories from people on both sides of this issue – those who have posted reviews which caused someone else to come after them in some way, and those who have had something negative posted about them online and wondered what to do about it. You can send comments to deb underscore mcalister at SBC global dot net (write it as an email address). Thanks!