Prosecuting Internet Defamation Claims

Negative reviews on Google, Yelp, Angie’s List and other websites can have very harmful effects on your businesses’ good name and reputation. Even worse is when the review defames your business with false statements. While the First Amendment protects the reviewer’s opinions, false statements which are based on specified false claims, even if couched in the language of opinion, are not protected. Under the law, there is a difference between when a reviewer claims that a dentist did poor dental work and claiming that the dentist mistreated you and intentionally provided unnecessary services simply to bilk the customer and does that on a repeated basis to all customers running a fraudulent operation. One is a protected opinion and the other is actionable defamation.

Negative and even defamatory reviews false reviews can be stressful; however you should not respond to every one of them. You should consider the importance and nature of the review and its potential for damaging your business. Responding could cause more damage and inflame the situation.

In general, there are three ways to solve the problem of false negative reviews – convince the reviewer to remove the offending review, request removal of the review by the review site, or go to court and obtain an order requiring the review to come down and obtaining damages if you can prove lost business or if the review constitutes a libel per se for which damages are presumed. Here, are some approaches we suggest for our clients:

• Provide an online response. Most review sites allow for this option. You should keep the response positive and make it clear that you want a satisfied customer and to make amends with the customer. You can offer a refund if the customer contacts you. If the review is completely false, you can address that in a respectful and succinct manner in your response without violating privacy rights of your customer particularly if you provide professional services, such as a lawyer, dentist or doctor.
• Send a Cease and Desist Letter from a Lawyer. If you can identify the reviewer, sending a cease and desist letter indicating that you will pursue litigation can result in the reviewer removing false and defamatory posts. The letter could itself be posted on the internet and choosing this approach can in some circumstances exacerbate the situation if the reviewer misuses the letter.
• Pay-off the Reviewer via a legal settlement. This is a distasteful solution but perhaps quicker and less costly than litigation where the review could be seen as protected opinion. This approach requires a formal settlement agreement with a broad non-disparagement provision and a liquidated damages penalty for violation of the agreement.
• Ask the Website to Remove the Post. The Consumer Decency Act provides immunity to websites for defamation actions arising from third party web reviews and postings. However, many websites have rules regarding postings and will take down reviews that are false or violate their terms of services. For example, if you can show that the patient who posted a review isn’t real, you might be able to convince the website to take the post down.
• Go to Court. This is the option of last resort. For anonymous posts, we may have to file discovery actions to learn the posters identity. An analysis of the costs of pursuing suit and its benefits must also be undertaken. The best cases are when the posts fit into a libel per se category where damages are presumed. We have been involved in a number of cases where a lawsuit was successful in solving the problem despite the costs and risks involved in litigation. Libel per se is a defamatory statement that is communicated in a fixed medium and is considered to be so harmful on its face that the plaintiff need not prove special damages. Examples of libel per se are statements that: (i) relate to the person’s business or profession to the person’s detriment; (ii) falsely claim that the person committed a crime of moral turpitude; (iii) imputes unchastity on the person; or (iv) claim that the person suffers from a loathsome disease.

Defamation law continues to change and evolve. Defamation attorneys must have extensive knowledge of First Amendment and other aspects of defamation law to effectively prosecute claims for businesses, professionals and individuals who have been defamed online. Our attorneys have over thirty years of experience in prosecuting and defending defamation cases. We are committed to protecting our clients from harmful cyber smears and online defamation. Located in Chicago and Elmhurst, Illinois, we have won judgments or settlements for our clients in defamation and libel suits throughout the Chicago area. To arrange for a consultation with one of our attorneys, contact us online or call at 630-333-0333.