Is there anyone reading this who hasn’t used Yelp?  For most of us, it’s an easy to use site that gives us some idea of how other people feel about a local restaurant, insurance agent, or small business we’re considering doing business with.  For others, it’s a great place to vent the frustrations and unhappiness that sometimes results when we have a bad customer service experience.

But for an increasing number of businesses, Yelp is a frustrating source of bad publicity that many think seems to be linked to whether or not they advertise with the site.  On Sept. 4, 2011, Eric Crusius, a Senior Attorney at Centre Law Group in Tysons Corner, VA, published a blog post titled Yelp’s High Wire Act that begins:

“In my practice, I have been contacted by business owners – all telling me the same story: I had ___ five and four star reviews on Yelp.  I then received a phone call from Yelp trying to get me to advertise on their website.  When I declined, my positive reviews were either pushed down, disappeared or suddenly became ‘filtered.’”

The blog goes on to discuss the legality of Yelp’s actions, explain Section 230 of the Communications Act, and describes what Crusius calls the “high wire act” that Yelp has been performing to keep it balanced within the protections offered by the law. 

He also links to an even more in-depth look at Yelp by blogger Jamie Davidson that illustrates how Yelp filters its own reviews to filter out negative reviews and highlight positive reviews. 

The same day, the Chicago Tribune published an article headlined:  Lone Yelp review dogs business owner: Dog trainer says website won’t let satisfied customers speak up. 

So what do you do if your business is affected by negative Yelp reviews? Yelp has a video offering its suggestions, as well as an FAQ and a blog for business owners.  Most people find Yelp’s suggestions both unrealistic and unhelpful, so here are some links to what I think are more practical ways to handle negative Yelp reviews.

• Reach out to the customer who posted the negative review, to see if you can resolve their problem.  This also helps to identify any potentially fake reviews. 
• Ask your satisfied customers for positive reviews. 
• Offer an incentive, such as a discount for Yelp users.  (One local vet offered a 10% discount on spaying or neutering a dog or cat on Yelp, and saw business increase by over 15% in a 90-day period.)
• In the most extreme cases, consider legal options. 

What kind of legal options?  Well, Yelp has spawned hundreds of lawsuits around the country.  Some are aimed at people who post reviews, and some are aimed at Yelp itself, while still others are aimed at other businesses that are alleged to have used proxies to post negative reviews of competitors. 

One myth floating around the blogosphere is that you can’t be sued if you focus on “facts”, not opinion.  In fact, it’s almost the opposite.  Opinions are protected by the First Amendment; something that you claim as a fact can be challenged — and it’s much, much harder to prove that something is a “fact” than most people think.

For instance, let’s say I own a restaurant called “Deb’s Kitchen.”  If you post a negative review that says, “I had the quesadillas at Deb’s Kitchen last night, and I didn’t like them.  I don’t think I’ll be going back – I’ll be spending my money across the street at David’s Bodega next time,” it’s an opinion, fully protected by the First Amendment, and there’s nothing that I (the business owner) can do about it except apologize to you and offer you an incentive to come back.

On the other hand, if you post a review that says, “The quesadillas at Deb’s Kitchen made me sick – don’t eat there.  The floor is dirty, the tortillas are terrible, the chicken was half-frozen, and the waiters are rude,” you’re making claims about facts that the business owner can dispute in court. The restaurant owner can argue that it wasn’t their food that made you sick, their floor is clean, their tortillas are light and hand-made, their chicken has never been frozen, and their waiters aren’t rude.  More importantly, telling other people not to eat there can be “tortious interference” – that is, interfering with someone’s ability to do business — and the comments about the food might be “product disparagement”.  Both are grounds for litigation.

For business owners, litigation over negative reviews used to be a last resort unless the business owner happens to have a law degree.  It’s expensive, and there’s no guarantee they’ll prevail.  Worse, sending a cease and desist letter to someone can result in even more negative publicity, and you may wind up paying damages to the people you sue along with their legal bills.

Now, however, more and more business owners seem to have adopted a “sue first” attitude. Some are resorting to SLAPP lawsuits (suits litigating against public participation) to intimidate those who might otherwise post negative comments about them.  The practice is so common that even Texas – usually known as a litigator’s paradise – has restricted them.

If you post a negative review, and get a cease and desist letter from a company asking you to remove it, don’t just toss the letter into a drawer and dismiss it in the mistaken believe that they can’t win a judgement.  Dozens (if not hundreds) of people have made that mistake over the last few years, and wound up owing damages ranging from a few hundred dollars to tens of thousands of dollars when a business owner got a summary judgement against them in court — often without their presence, becuase they couldn’t afford to mount a defense.  (If you get such a letter, start here in the search for free or low-cost legal help.)

The main thing to remember if your business is the subject of a negative review on Yelp (or any other site) is that the only real way to deal with negative reviews is to get enough positive reviews to outweigh the negative in search results.  Which brings us back to the blog post by attorney Eric Crusius.

Is Yelp really stacking the deck against companies that don’t advertise with it?  I don’t know, but I’m sure we’ll be reading more about this subject in the future, especially now that Google has bought Zagat and plans to add Zagat reviews to Google Places.

Disclaimer:  I am not a lawyer; nothing in this blog purports to be legal advice.  Consult a competent attorney licensed in your state before making any decision about a legal matter.