Published in NH Business Review (11/20/2018)
Online reviewers wield a lot of power.
In just one click, they can hand out the dreaded one-star review without any evidence to support the rating. They can pen a post about their horrendous experience at the new [insert your business here], without ever mentioning important details about what happened to justify that experience. They can—and do—influence customers that their experiences are typical of what others will experience if they interact with a particular business, and those experiences are forever memorialized on the walls of social media platforms.
Though that paints a grim picture of the online review environment, online reviews are not entirely a bad thing. Many—perhaps even the majority of—online reviews represent honest opinions of reviewers, and consumers want that perspective before making purchasing decisions.
Online review platforms—for example, Yelp, Google, Facebook—give consumers the ability to voice their support or disappointment in the businesses with which they interact in a way like never before. Businesses take these ratings and reviews seriously, and are incentivized to do whatever necessary to keep the customer experience top notch. That’s a win for everyone.
But there exists an underbelly of the online review world. One where a reviewer’s post or tweet includes false, defamatory, unlawful, or inflammatory commentary about a business. If left to simmer, this kind of review—maybe it’s filled with hate speech or wrongfully accuses a business of criminal conduct—can have profound, negative impact on a business’s reputation and profitability. This is a “cyber smear”.
There is no sugar-coating it: Dealing with a cyber smear is challenging, and the legal framework is not favorable to the smeared.
Remember, online commentary is protected speech under the First Amendment. Certain doctrines except certain speech from that constitutional protection, but those issues are complex and outside the scope of this article. Then, to make matters more difficult for the smeared, the websites that allow posts, tweets, and reviews are insulated from liability for most of what is said on their platforms because of federal Communications Decency Act, unless a statutory exception applies (most likely, in cases where a review constitutes intellectual property infringement).
Even so, options for defeating a cyber smear do exist. Here are some ways to win out:
- Requesting Removal: Most social media sites provide a mechanism by which a business may request removal of a post. Successful requests focus on how the target-post violates the social media platform’s Terms and Conditions, which will typically establish the site’s content guidelines and restrictions. In most circumstances, this request will be accompanied by clear evidence showing why and which term the review violates. Unfortunately, the success rate of these requests is seemingly low.
- Lawsuit: A business may also consider pursuing a lawsuit against the reviewer. Though the causes of action vary, most often litigation over a cyber smear is prompted by a defamatory statement. Litigating a cyber smear requires a business to deploy an analytics-driven (i.e., not emotion propelled) strategy. Critical decisions about the objectives of the litigation that must be made at the outset include, but are not limited to: (i) Identifying the wordsmith behind the problematic post; (ii) Determining whether the expense and aggravation of litigation is worth the pursuit of the smearer (not likely a deep-pocketed defendant); and (iii) Considering whether the smearer is likely to retaliate against the business by continuing to post negative online reviews during the course of litigation.
- Incentivizing Positive Reviews: Instead of seeking removal, Businesses may incentivize other consumers to post favorable online reviews on the same social media platform, drowning out the cyber smear with positive endorsements. Any business that pursues this kind of marketing campaign is responsible for ensuring its practices are neither deceptive nor misleading, regardless of the medium. Regulators—specifically, the Federal Trade Commission (“FTC”)—are closely monitoring social media marketing practices like this one. Under federal law and FTC guidance, material connections—for example, compensation, free meals, free travel, employment—between a business and a person who reviews or endorses that business must be disclosed so consumers can meaningfully assess the credibility of that review or endorsement. When and how to properly disclose these material connections are nuanced considerations that depend on the context of the review or endorsement. Know this: The business and the reviewer, blogger, or influencer share in the responsibility for compliance. Non-compliance can, and has, resulted in costly FTC enforcement actions against businesses and, most recently, individual endorsers. This approach to defeating cyber smears has proven successful, but requires consultation with counsel well-versed in this area of the law.
In sum, cyber smears present businesses with risks online that are especially difficult to account for and control. Developing a response plan before a cyber smear arises is critical to combatting the negative commentary successfully. Reactionary responses to a cyber smear are only likely to further exasperate the problem, and may even result in more negative online reviews.
Michael Strauss is an attorney in the Litigation Department at McLane, Middleton, Professional Association. He can be reached at michael.strauss@mclane.com or at (603) 628-1442.