Today, information is literally at our fingertips at the touch of a button. You can find all the closest custom coffee cup makers in a 15-mile radius, how to clean your whole house with baking soda, or even reviews for that new gadget you were eyeing. Some of this information is even true!

Most business owners ask their customers to leave reviews…and then worry what effect a possible negative review will have. So what will happen if there is a negative review, and is that even legal for a customer to do? What if the review comes from someone who never even used your product?

The first concept to tackle here is what are people able to say or post online about your business?

 

The First Amendment

The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In general, this amendment guarantees both the freedom of religion and the freedom of expression. These freedoms encompass many additional things, including the freedom of speech.

What does “freedom of speech” mean exactly? It means that the government cannot interfere with you expressing yourself. This expression can be verbal or in a variety of other expressive means, such as writing and artwork. Of course, there are exceptions to this seemingly huge freedom. For example, you are not free to use:

  • Obscenity
  • Child pornography
  • “Fighting Words”
  • Defamatory statements

In relation to our purpose we need to delve deeper into the prohibition of defamatory statements.

 

What Exactly is Defamation?

Defamation is the act of hurting someone’s reputation. There are two types of defamation:

  1. Libel: Written defamation
  2. Slander: Spoken/Oral defamation

The legal definition of ‘defamation’ is determined at the state level, so it’s meaning might vary slightly based on your jurisdiction. In general, in order for a statement to be deemed defamatory the following must be shown:

  • A false statement,
  • Publication/Communication to a third person,
  • Damage, and
  • Unprivileged speech.

In other words, in order to prove you are a victim of defamation, you must show that the statement was not true, that at least a third party (not you or the speaker) heard/saw the statement, that you were injured in some way by the false statement, and the statement doesn’t fall under an exception. For example, if Blogger X posts a false article on their blog accusing Blogger Y of taking payments from companies for product reviews posted on their blog without disclosing it to their readers, Blogger X could likely be facing a case of libel.

 

Defamation and Public Officials/Figures

An important distinction to be made in regards to defamation is that the above standard is for private citizens. Generally, public officials and public figures (e.g., Mayors and movie stars) are afforded less protection than private citizens in cases of defamation. In addition to the above standard, they must prove “actual malice”. In other words, they must prove that the statement was made specifically to injure their reputation.

 

What Does This Mean For Reviews of Businesses/Products?

The first thing to remember here is that the truth is an absolute defense for defamation. This means that if you write or state a review of a business or product, even if it isn’t complimentary, but it recounts accurate occurrences, then you are likely not committing defamation.

The second thing to remember is that opinions are not defamatory. This means that if you write or state your personal opinion of a product, even if it isn’t complimentary, then you are likely not committing defamation.

With that in mind, if you are planning to include information on your business website about other businesses, as long as it is true and/or an opinion you should be in the clear.

But…

The strong effects of negative reviews have caused many businesses to take action. You will find that clauses have been added to many contracts between businesses and their customers called non-disparagement clauses. This means that the customer, often just by doing business with them, has agreed to not post any negative reviews.

As this is a growing area of law, it is not clear yet whether these clauses will be found to be legal or not across the country. Some states have already taken action against them, such as the so-called “Yelp Bill” in California. The Yelp Bill prohibits businesses from not allowing customers to write negative reviews.

Stay tuned!

Additional Resources:

Cornell Law School: First Amendment

Cornell Law School: First Amendment (2nd article)

Cornell Law School: Defamation

How the Law is Changing Online Reviews

California’s “Yelp” Bill Becomes Law

Freedom of Speech and Press: Exceptions to the First Amendment

When Bad Reviews Hit: Should You Call Legal or PR?

Non-disparagement clauses: a new way to get nothing for something

 

Defamation in the age of Yelp!

 

About the author

Rachel Brenke is a lawyer, author and business consultant. She is currently helping professionals all over the world initiate, strategize and implement strategic business and marketing plans through various mediums of consulting resources and legal direction.

Hi, I’m Rachel Brenke

Rachel Brenke

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