It’s really tempting to look at a bad Yelp review or see a sudden revolt from your customers or users and immediately want to lash out. Do NOT do this.
Take a moment, breathe, and think about what you want to say.
Often the CEO or founder of a company is in charge because they devoted time, energy, an enormous amount of resources, and took on considerable risk to themselves, their family life, and financial health. It’s only natural to want to keep close control, but some things you cannot control. One of those things is the Internet.
Here are three things to keep in mind when addressing abusive, derogatory, or critical comments online: 1) you very likely do NOT have a cause of action for libel or slander, 2) the Streisand Effect is real – and it will hurt you regardless of your industry – even if you are a lawyer and, 3) you can mitigate the problem with a few tools.
Defamation, Libel, Slander
A common complaint I hear from business owners is that someone “slandered” them on Yelp or some other website. They immediately want to file suit and are absolutely outraged. When we start talking about libel in California we can really pick apart the argument though:
Let’s start with the very common, knee jerk “I want to sue Yelp!” (or any other website that hosts this content). Yelp and other websites that use web 2.0 models where users upload reviews rather than the site itself writing or editorializing get safe harbor from defamation under §230 of the Communications Decency Act. This is a federal law that preempts State laws to the contrary. Under the safe harbor provision, websites are not considered the speaker – the person posting the review is. Thus, the person to sue is actually the person writing the review.
“I want to sue username antiSLAPP9000 who has an avatar of monkey riding a unicorn!” Suppose we can easily find out who antiSLAPP9000 is and he has actually fit the elements of libel in California under Cal. Civ. Code § 44, 45a, and 46. These code sections require a publication of a statement of fact, that is false, unprivileged, has a tendency to injure or cause “special damage” (defined under Cal. Civ. Code § 48a) and, the defendant is at fault in the publication met the threshold for negligence.
For starters – the truth is an absolute defense to libel. The statement does not have to be the absolute truth either. The substantial truth of a statement is a defense to defamation. This means that if the reviewer expressed that on a particular date and time their food was awful, but they erroneously stated the date and time, they have a defense.
Going a step further – reviewers are allowed to express their opinion – even if it’s hyperbolic. Not all opinions are protected. This means the reviewer cannot couch a factual statement as opinion. “It’s my opinion the restaurant poured gasoline on our baked Alaska, then himself and he self immolated while singing Happy Birthday to my wife. Ruined our meal. 1 star.” is probably a ridiculous statement. The speaker either saw and heard this happen or they did not. The speaker can have all kinds of other opinions on such an act – but if it never took place and they insert “my opinion” as a preface the statement is not protected. A protected opinion, although distasteful, would be “It’s my opinion that the restaurant’s dessert options tasted like cardboard and smelled like wet dog.” Of course the options for dessert probably do not taste or smell that way, but it’s still a protected opinion.
Now the business owner is thinking “I still really, really hate antiSLAPP9000. I still want to sue.” The California legislature and the courts are sick of hearing “he said she said” libel claims. To combat this the legislature enacted the antiSLAPP law (Ca. Civ. Proc. § 425.16). This stands for anti-strategic lawsuit against public participation. The remedy the business asks the court for is to chill someone’s right to warn the public against their bad business. It’s referred to by courts and attorneys as a special motion to strike. The motion stays all proceedings and discovery until the motion is heard and then the plaintiff (the business) would have to make a showing that they have a substantial likelihood of succeeding on the merits without any discovery. If the business loses they could pay the other side’s attorney fees. Additionally, the successful defendant in an antiSLAPP motion can sometimes “SLAPP back” and can include damages for emotional distress and punitive damages.
Now the business owner, who simply wanted a bad review to go away, faces paying the other side’s attorney fees and a lawsuit levied against them by the target of their original lawsuit.
The Streisand Effect
Now that the business owner has filed suit, lost, and faces damages their customers are now revolting, leaving, and adding more negative reviews on Yelp and other websites. Now it feels like a dam of bad public relations burst and the business is dead due to the harm to their reputation. This is called the Streisand Effect.
Interesting name, right? The Streisand Effect is named after Barbara Streisand who once made the mistake of demanding that a tabloid not public pictures of her property. Rather than having the desired effect of getting rid of the pictures – the opposite took over. Her demands actually created controversy where there would have been none. Everyone wanted to look at the pictures she demanded no one look at and the as a result their circulation increased.
At this point you might be thinking this sounds made up. It is not. Even lawyers are not immune to it. Charles Carreon, an attorney in California previously famous for the sex.com litigation, decided to represent FunnyJunk.com in a dispute with Matthew Inman, the creator of The Oatmeal. Inman claimed on his website that FunnyJunk repeatedly used his cartoons without attribution and their users infringed on his copyright. Carreon sent Inman a demand letter for 20,000 dollars for defamation.
What followed after the demand letter quickly became a bad, expensive, public relations circus for Carreon. Inman, instead of paying the 20,000 dollar demand, drew a picture of the owner of FunnyJunk’s mother attempting to seduce a kodiac bear. He then launched a crowdfunding campaign to raise 20,000 dollars so he could take a picture of 20,000 dollars cash with the picture of the bear love and send the picture to Carreon while he took the proceeds and donated them to the American Cancer Society and the National Wildlife Federation.
Carreon’s reputation as an attorney was effectively ruined and the legal fees he incurred filing lawsuits himself against Inman resulted in at least 46 thousand dollars in legal fees. At the end of the fiasco Carreon remarked “It was a dumb thing” and “I made it worse.” (http://arstechnica.com/tech-policy/2013/09/charles-carreon-withdraws-final-appeal-says-entire-affair-was-a-dumb-thing/; http://en.wikipedia.org/wiki/Charles_Carreon#The_Oatmeal; http://en.wikipedia.org/wiki/The_Oatmeal_and_FunnyJunk_legal_dispute)
Businesses are not immune to this effect, celebrities are not immune, and attorneys are not immune.
Mitigating the Effects of Bad Reviews
If you find yourself storming into an attorney’s office demanding a libel lawsuit – consider, even if you have a perfectly valid defamation suit, doing some basic only public relations work. Hire someone reputable to do your Search Engine Optimization (SEO) efforts. Lockdown social media profiles and promote yourself in forums that you exert more control over. If you choose to engage people in forums where you’re not in control – be prepared to bow out gracefully after stating your piece and understand that sometimes responding simply throws gasoline on the fire. These are some simple things you can do yourself or hire someone on a monthly basis to take care of.
A quick word of warning on SEO and Social Media efforts: when you hire professionals to manage your SEO efforts – make sure they’re competent to do it and not farming it out to sweatshop labor overseas where they spam your name across the web. This can contribute to a backlash against you, get you dropped from search engine results, and banned from the communities you want to engage. Social media campaigns are only successful when they are genuine and I have ample experience dealing with thousands of failed SEO campaigns attempting to use the forums I have helped build for legal professionals.
Keep in mind that everything you write or post online becomes an indelible mark on the Internet. It will not ever go completely away but, with some effort, you can make your best foot forward the most relevant and through positive reputation management and avoiding suing your customers or threatening them legally, you can persevere.