New Option for Business Owners to Combat Negative Online Reviews
With the increasing dependence on the internet, consumers now turn to and sometimes rely on online reviews to assist them in deciding where to take their business. This makes online reviews particularly important and effective in driving consumers to your business. But along the same lines, negative reviews can have the opposite effect of driving customers away from you and directly to your competitors, possibly harming your reputation along the way. Unfortunately, the increasing popularity of online business review forums brought the ability of angry customers to hide behind their computer screens and leave negative reviews that may even border on defamation. However, if this situation is all too familiar, recent developments of internet free speech law may give you a new plan of recourse.
A few recent California Appellate Court decisions have changed internet free speech rights. One case, described in detail below, held that internet providers and hosts can now be forced to remove defamatory content even if posted by third parties. This holding is controversial as it seems contrary to internet free speech law, but is nonetheless good news for business owners at least for the time being.
FREE SPEECH ON THE INTERNET
The source of businesses reputation, formerly word of mouth, has shifted to an entirely different medium: the internet. Although technology continues to develop, the internet has become the main forum for consumers to exercise their First Amendment rights. The Communications Decency Act (“CDA”) set the stage for internet free speech. Signed by President Clinton in 1996, the CDA was originally intended to combat internet indecency. However, after the United States Supreme Court overruled much of the CDA just a year later, what remained of the CDA became a staple of internet free speech. The surviving portions of the CDA protected internet hosts and websites from liability for the actions of its users. This meant that internet hosts and providers, like Yelp, were not responsible for the content that third parties publish on their websites, and thus were largely shielded from liability. This made it difficult for business owners to take action and identify a party responsible for the harmful posts.
Broad internet free speech rights present a dilemma for business owners. What options do you have when an infuriated patron vents his brutal and exaggerated complaints about your business on internet sites, such as Yelp? While you may want to take immediate action, dissatisfied customers do have a First Amendment right to publish their opinions of business on the internet, both good and bad.
The Superior and Appellate courts in California have been busy analyzing this issue, specifically regarding posts on Yelp. Yelp is a very popular internet forum for users to post reviews of businesses. Many reviews are positive, but of course, other reviews are negative to the point of potentially damaging the businesses reputation. Although the CDA provides a strong shield to the operator of the website for actions taken by its users, some language is not protected and thus actionable. Unfortunately, the line between what language is and is not shielded from liability as free speech is blurry, making it difficult for business owners to take action.
Important in analyzing whether a comment made on Yelp is protected is whether or not the speech is considered “defamatory.” Defamation is a catch-all term for any statement that hurts another’s reputation – it can be spoken or written. To be liable, a person must publish a statement either with malice or as a result of negligence. A private figure claiming defamation must only prove that the statement was made negligently, which means failing to exercise reasonable care. If the subject of the post is a public figure, the post must have been made with actual malice, meaning the statement was published either with knowledge that it was false or with a reckless disregard for the truth. True statements as well as statements of opinion are protected, although verifiable facts guised as opinions are not protected.
RECENT APPELLATE COURT CASE
One recent Appellate Court case has changed the implications of the CDA and may affect business owners’ rights against those who publish false statements against them. Decided in June of 2016, in Hassel v. Bird, the defendant, Bird, posted comments on Yelp about her former attorney, Hassel. After Hassel sued, the trial court found the statements on Yelp to be factually untrue and thus defamatory as a matter of law. The court ordered Bird to remove each and every defamatory review she published about the law firm, and ordered Yelp to remove all reviews posted by Bird. Yelp, which was not a party to the lawsuit, objected that because it was forced to remove Bird’s posts, it were basically held responsible for the posts, which constituted an infringement of its First Amendment rights and a violation of the CDA.
The Appellate Court generally held that the speech wasn’t protected because it was deemed defamatory. It further stated that even though Yelp was not a party to the lawsuit, and even though the CDA immunizes providers of interactive computer services against liability arising from content created by third parties, requiring Yelp to remove the defamatory posts was not a violation of the CDA and was not an infringement of the First Amendment.
This holding caused controversy among e-commerce and free speech supporters. These enthusiasts opined that the CDA is the most important law on the internet, and that the Hassel v. Bird ruling undermined the CDA along with the First Amendment because the court forced a non-party to remove the posts. If Yelp did not remove the posts per the court order, the court could hold them in contempt, which in effect renders them “liable” for the posts, apparently in direct violation of the CDA. Nonetheless, this case means that, at least for the time being, Yelp can be forced to remove posts that are defamatory as a matter of law.
Despite the uproar, Hassel v. Bird makes clear that in certain situations, Courts can force Yelp to delete certain reviews without violating the First Amendment and the CDA. This is good news for business owners who previously struggled with how to address untrue and injurious reviews. But to implicate the holding of Bird, a lawsuit and finding of defamation would likely be a prerequisite. Additionally, the Supreme Court of California recently granted review of the Hassel v. Bird opinion, so although the future validity of the Hassel case is unknown, it is surely beneficial for business owners for the time being.