When Can an Online Review Constitute Defamation?

If you want to buy a product or service, you probably look at online reviews before making a decision.  Online reviews often play an important role in building a good reputation.  Businesses with bad online reviews take it very seriously knowing that it could be detrimental to its sales.  When a business feels a review is unfair or false, it often wants to know if it can sue for defamation.  The answer is complicated.  An online review can constitute defamation in some cases, but it can be challenging to prove.  If you feel you have been defamed by an online review or you are being accused of defamation because of a review you posted, good legal advice is essential.

Can a Consumer Be Sued for Defamation for Reviewing a Business Online?

A consumer could be liable for defamation for an online review.  Defamation is the publication or communication of a false statement of fact about a person to a third-party, which causes harm to the person’s reputation.  In New York, defamation requires proof of the following four elements in order to succeed:

• There was a false statement of fact;
• The statement was published to a third-party without authorization or privilege;
• The person being accused was at fault; and
• As a result, there was some harm done to the accusing party – or the statement constituted defamation per se.

There are various defenses to a defamation claim, including that the statement was true, it was an opinion, it was privileged and/or there was no harm.  Additionally, online reviews are protected by the First Amendment and various other laws including the Consumer Review Fairness Act (“CRFA”).

Can Businesses Remove or Restrict a Defamatory Online Review?

Importantly, under the CRFA, a business cannot restrict customers from reviewing the business either through a contract or website policies.

The CRFA prohibits companies from using contract provisions (or website terms and conditions) to impose limits on online reviews.  Specifically, the Act makes it illegal for a company to use a contract provision that:

• Bars or restricts the ability of a person—who is a party to that contract—to review a company’s products, services or conduct;
• Imposes a penalty or fee against someone who gives a review; or
• Requires people to give up their intellectual property rights in the content of their reviews.

However, companies can remove or restrict reviews under certain circumstances.  These include reviews that:

• Contain confidential or private information
• Are libelous, harassing, abusive, obscene, vulgar, sexually explicit or is inappropriate with respect to race, gender, sexuality, ethnicity or other intrinsic characteristics;
• Are unrelated to the company’s products or services; or
• Are clearly false or misleading.

Can the Platform that Published the Review Be Sued for Defamation?

When a bad review is published on a third-party website, many businesses will try to get the website to remove the review.  If the website won’t remove the review, a business may attempt to sue the website.  However, in most cases, such lawsuits fail.

Section 230 of the Communications Decency Act (“CDA”) addresses the liability of internet service providers (“ISPs”) and websites that host third-party content.  Generally, ISPs and websites are not liable for what users post even if they are moderating posts and a party was harmed by posts that were not removed.  However, websites can be liable for enforcing criminal law, intellectual property law, state laws and sex trafficking laws.

In addition to avoiding liability for failing to remove a post, ISPs and websites are also not liable when they edit or delete a post.  Websites can restrict content they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” as long as they act “in good faith.”

What Should Businesses Do if They Get a Bad Review?

Best practice is to try to address the problem without litigation.  Attempt to contact the person to resolve complaints, if possible.  If you cannot reach the person, post a polite response that offers a solution, or indicates your desire to resolve the problems offline.  Do not engage the person in an online argument.  Also contact the website about removal if the review is factually inaccurate.  While the site is not required to remove it, it may agree to do it.  Finally, encourage happy customers to post positive reviews to counter negative ones.

If these efforts fail or you believe the review is defamatory, contact an experienced attorney to discuss your rights.

Similarly, if a business has sued or threatened to sue you because of an online review, consult an attorney as soon as possible.