Law and Technology

Handling negative online comments

December 31, 2018
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It has become increasingly common for disgruntled customers to take to the internet to complain about what they perceive to be their negative experience with a business. Although people have the right to complain about goods and services they purchase, there are limits to what can be said (and how it can be said), and action can be taken in some circumstances to have negative content removed from a website.

Investigate

Negative comments and reviews may be based on an actual customer experience, but sometimes a business’ competitor, a disgruntled former employee, or a spammer may attempt to tarnish your business’ reputation by posting a fake review. Take screen shots of the negative reviews. Before responding, try to find out the identity of the poster, whether they were an actual customer and whether there are any facts that rebut statements made in the negative review. The more information you can gather, the better. Also evaluate the harm caused or likely to be caused from the post (e.g., lost customers and profits, etc.).

Understand your rights and the rights of the poster

A review does not violate the law just because it is negative. The First Amendment protects certain kinds of speech. For example, “sucks” sites, which are designed for the sole purpose of collecting negative comments about a particular business, are not in and of themselves actionable. Moreover, state and federal laws prohibit companies from taking certain actions to restrict customers from expressing their honest opinions about a business’ products, services, or conduct.

However, a business owner can take action to have certain inappropriate content be removed from a website, such as:

False statements: Defamation is a knowingly false statement of fact that is damaging to the reputation of a business or a person. If a review or post makes false statements of fact, this may be actionable defamation. Negative opinions (e.g., “this business sucks”) generally aren’t actionable, but a false statement of fact (e.g. “the business refused to serve me”) can be actionable defamation. Truth is a defense in defamation actions, so anyone considering an allegation of defamation should be prepared to address potential evidence that the statements made were true.

Intellectual property: If a review or post uses a business’ trademark in a way that causes a likelihood of confusion, then that post may be actionable trademark infringement. Moreover, use of a business’ copyrighted work without permission may be copyright infringement. However, the mere use of a business’ name or logo as criticism does not rise to the level of actionable infringement. Courts are increasingly intolerant of plaintiffs that try to remove a negative post with a false claim of infringement, and so any potential intellectual property claim should be carefully analyzed by competent counsel.

Privacy/confidentiality violations: If a review or post discloses confidential, proprietary, or private information, state law may support action against the poster. Many states have enacted legislation protecting trade secrets that will allow the owner of the disclosed secrets to quickly obtain a court order prohibiting further disclosure and remedying damages caused by the disclosure.

Policy violations. Many online platforms prohibit the above inappropriate content, and also include a list of additional reasons that permit content to be removed, such as obscenity, conflicts of interest, off-topic reviews and other reasons. These will generally be described within a platform’s “Terms of Use.”

Be nice

Although it is understandably frustrating to be the recipient of criticism, angry responses seldom work, and could in fact make the problem worse. If you are going to respond to the negative review or contact the person who posted the review directly in an attempt to resolve the issue (which isn’t always the best plan), be polite and professional, and be careful to avoid publicly disclosing personal information about the individual poster. It is sometimes appropriate to defer direct contact to an attorney, particularly if the reviewer has posted statements that violate intellectual property rights or constitute actionable defamation.

Ask the poster to remove the review

Keeping in mind the prior point, you may consider reaching out to the individual poster to address legitimate concerns. Explain what you will do to resolve any issues, while asking if the poster will consider editing or removing the review. Be mindful that any correspondence you have with the poster may be made public.

If the post is actionable for one of the reasons described above, it may be helpful to have an attorney send a letter to the poster on your behalf. Oftentimes, a demand letter from an attorney can quickly result in the poster removing the inappropriate conduct, as such “cease and desist” letters generally set forth the potential causes of action against the poster, summarize the potential damages that would be sought if legal action is necessary and request compliance by a specified date. The tone in an attorney’s cease and desist letter can be more businesslike and firm than the tone in a message sent by the business owner.

Report false statements to the platform

If the online comments violate the platform’s terms of use, some platforms will allow the validity of the review to be contested. For example, some platforms (including Google) allow a business owner to flag inappropriate reviews. Some (but not all) platforms will remove inappropriate comments entirely under certain circumstances. Instructions for requesting this removal generally also are included within a website’s “Terms of Use.” Some larger platforms (again, including Google) also can be contacted via customer support and social media with reports of inappropriate conduct. However, some platforms will not remove reviews for any reason.

File a lawsuit

If all else fails, a business owner can file a lawsuit to ask a court to order that the inappropriate content be removed. Careful consideration should be taken before filing a lawsuit to determine that there is a legitimate cause of action, to avoid the risk that the lawsuit is determined to be a meritless suit filed in retaliation for an issue of public concern.

A business owner should work closely with counsel to determine who should be sued in such a lawsuit. Some platforms will require a court order before revealing an anonymous user’s identity or before removing anything from the website. Although it may be tempting to sue the platform provider, some courts have refused to order providers to remove third parties’ posts.

Investigation into the facts underlying the comments will help a qualified attorney provide advice regarding whether a lawsuit is likely to succeed.