Outlook 2014: Untruthful posts to consumer review websites could result in lawsuits

Q. Are customer comments posted on consumer review websites protected speech under the First Amendment or are individuals who post opinions potentially subjecting themselves to a libel lawsuit?

A. While the First Amendment protects us from the limitation of our right to free speech by the government, it doesn’t protect us from the consequences of false speech through a libel or defamation action. While anyone is free to publish a negative review, they should be prepared to establish that the review is truthful. Truth is an absolute defense to a defamation action.

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by Paula Burkes Published: April 27, 2014

Q. Are customer comments posted on
consumer review websites protected speech
under the First Amendment or are
individuals who post opinions potentially
subjecting themselves to a libel lawsuit?

A. While the First Amendment protects us from
the limitation of our right to free speech by the
government, it doesn’t protect us from the
consequences of false speech through a libel or
defamation action. While anyone is free to
publish a negative review, they should be
prepared to establish that the review is truthful.
Truth is an absolute defense to a defamation
action.

Q. Is there legal precedence for a business
to sue an individual or another business
because of a negative review?

A. In a recent case in Virginia, a homeowner was sued for defamation for posting a negative
review of a contractor’s work following the renovation of her home. The jury found that the
homeowner’s statements were defamatory but, because the contractor had also defamed her in
his responses, the jury awarded no damages to either party.

Q. Some consumer review websites allow a certain level of anonymity for its posters. Can
these sites be required to reveal the reviewer’s true identity when a review is disputed?

A. An anonymous review may give the reviewer a feeling that he or she can say whatever they
want without consequence. However, in the Virginia lawsuit, the website was required to
produce the identifying information of the reviewers in its possession.
David L. Kearney GableGotwals shareholder

Q. Is there any legal recourse allowing a business to require the consumer review website to
remove a negative review, especially when the review can be proven bogus?

A. A consumer review website has the same obligations as any publication to avoid publishing
false and defamatory statements. If a business can “prove” the review is bogus, a reputable
review site should remove that review. Proving the review is bogus would be difficult, since in
most cases it will be the word of the reviewer against the complaining service provider. The
point of review sites is to allow consumers to provide honest evaluations of the service provider.
Sometimes those reviews will be negative and it would be pointless to have a review site that
doesn’t provide negative comments. The review site therefore will likely resist removing
negative reviews, unless there is a strong case that the review is false.

PAULA BURKES,
BUSINESS WRITER

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