One thing that is a developing area is defamation in the context of online reviews for businesses. Online reviews are becoming increasingly important to businesses. In South Carolina, the Dickson Davis Law Firm assists businesses trying to monitor and maintain this up and coming issue for businesses. The Dickson Davis Law Firm wanted to share some basic, general knowledge about this ongoing issue that is troublesome for businesses in a developing area of the law.
First and foremost, businesses can control the settings on social media to limit people's comments or reviews without your express authorization. No business should be paying an attorney to do cease and desist, demand letters, or litigation when the solution is to become properly trained on these settings in social media for your business. As an ethical matter, businesses should not be wasting money on legal representation in these types of cases for circumstances within your control on social media. Also, without controlling your settings, one could argue that you consented to the public to make such comments defeating any claims you might have. Managing your social media platforms is critical in this respect.
One work-around would be, depending on the type of business you have, to require your customers to sign a non-disclosure agreement that customers may not post online reviews of your business without your consent and authorization. Disclaimers along these lines can be incorporated into your online presence with your website, social media, and other listings for your business.
Alternatively, every business with a website knows that SEO optimization is key to promoting your business online, which relies upon the proprietary rating system led by Google.com. Unfortunately, Google will not remove false statements or reviews online without a court order. Meaning, if you want to be active in protecting your business, then you have to monitor these ratings and respond appropriately. Remember, as angry as you may be about a patently false review, you must not retaliate and make defamatory comments yourself. Always remain professional in your responses.
Keep in mind, certain professions also have rules about not disclosing whether the reviewer is a patient, client, customer, and so forth. For specific businesses, the most appropriate response is to acknowledge the response (i.e., I am sorry that you feel that you are not having a positive experience with my business), provide a customer service number, email, online form for complaints to help diffuse these negative reviews before these negative reviews take place. For certain businesses, do not acknowledge whether or not the person is or is not a patient, client, or customer if keeping the identity of the customer confidential is part of your business maintaining compliance with regulations. Any kind of customer simply wants an outlet to express their frustration and dissatisfaction with your business. Direct that person to a live person. Remember, the angry customer who tells you that he or she is angry is, often, a good customer that is trying to tell you something but feels like you are not listening or do not care.
Nevertheless, some people just make a stink that has no meritorious basis about your business. By contrast, some negative reviews may be a byproduct of a competitor trying to sabotage your business by bringing down your ratings online. That issue is a whole other matter and actionable. Competitor sabotaging is a no-no. Just don't do it. If you have to sabotage another business by posting negative reviews online about that business, then obviously your priorities are not in line with focusing on your business and generating revenue stream for your business. Successful businesses worry about pushing their own boundaries for successes and failures, not by constantly comparing their business to others. Having knowledge of competitors and their business models is important to remain competitive, but competitive sabotaging by making defamatory online reviews is not maintaining a healthy knowledge of the market and the competition.
In South Carolina, defamation is an intentional tort action when the speaker or writer intended to publish a defamatory, false statement statement to a third-party about your business to discredit your business's reputation and causes damages consequently. Defamation comes in two forms: slander and libel. Slander is spoken defamation. Libel is written defamation. Defamation is often hard to prove because of the damage component.
Defamation per se is when the statement is on its face is apparent by the language to injure your business's reputation and harm your business. If the meaning of the statement is innocent on its face, then the defamation is not defamation per se. Libel per se pertains to written or printed words of a degrading nature about your business to tarnish the character or reputation of your business with friends, acquaintances, the public, or, in the alternative, disgraces your business to be odious, comtemptible, or ridiculous. Slander per se pertains to accusing your business of committing a crime of moral turpitude, contracting a loathsome disease, committing adultery, being unchaste, or unfit in your trade, business, or profession. In defamation per se situations, damages are presumed because the very statements are injurious to the business's reputation. By contrast, in a defamation claim, one also has to show proof of malice and special damages.
When you have a claim, you present a cause of action which provides for a remedy at law or in equity (the difference can be the type of recovery such as monetary for at law or to prohibit someone's actions at equity for example). In a cause of action, you have to prove the factual allegations that track the elements of that cause of action. Defamation is called an intentional tort, meaning, someone cannot accidentally defame your business. So, for defamation, the elements for this cause of action are: (1) a false statement was made and defamatory in nature to injure your business or with reckless disregard for the truth or falsity of the statement; (2) the false statement was made with actual or implied malice (in defamation per se cases, malice is presumed); (3) the false statement was published to a third-party as an unprivileged statement; (4) the false statement concerns your business; and, (5) damages are legally presumed in defamation per se cases or plaintiff must show special damages in defamation cases. The publisher may mitigate damages by retracting the statement.
Defamatory statements are intended to discredit your business's honesty, reputation, integrity that invites public hatred, contempt, scorn, or result in your business being shunned or boycotted generally speaking. Not only must the statement be false, but, an omission of material facts may also warrant a false statement. The affirmative defense to defamation is for the publisher to claim that the statement made is true or that your business consented to the publisher making statements about your business.
Other nuances exist such as employees making statements to one another in the same company usually fall under qualified privileged communications when made in good faith and in the ordinary course of business, which does not amount to defamation. Damages are legally presumed if the business suffers embarrassment, humiliation, or injury to the business's reputation. In the alternative, a business must prove identifiable pecuniary, economic, or material loss in the form of special damages. More importantly, the statute of limitations for defamation cases is two years, which is important to preserve your claims and take action.
Because defamation may also deal with the constitutional right to free speech, defamation cases also must pass the constitutional standard as well, which will not be discussed in detail here. But, a special mention is important to note that, if the publisher's right to free speech is implicated under the First Amendment of the U.S. Constitution, then damages may not be presumed. Other nuances exists and legal analysis is required to determine each case's specific claims to determine whether a viable claim for defamation exists based on specific facts and circumstances. A full consultation with an attorney is proper to determine what is applicable in your situation.
Typically, negative reviews are either few stars without comments or few stars and scathing comments. When working behind the screen of a computer, the writer of these reviews feels safe and innocuous behind a screen as out of sight and out of mind protected by the lack of social interaction when dealing with online public forums—to get away with saying whatever you want to say. However, words do hurt and no one is entitled to say whatever they want and whenever they want. Words are actions. A trend against cyber bullying on social media is another example of words, as actions, being actionable that may result in the exposure of liability to the online bully pushing an old concept of law into new terrain with online public forums with potential of new applications and creative, legal arguments.
These writers of negative reviews, who do not convey the truth in their review, fail to appreciate the fact that, in today's day and time, and the advancement of technology, the writer is exposing himself or herself to liability for defamation when posting negative reviews online and making false statements against the business generally speaking. For businesses, typically business owners are dealing with disgruntled customers, prospective customers, or competitive sabotaging. Many times, these statements are patently scathing that, if false, would most likely fall under the category of libel per se. While Google.com will not remove the negative review, even if false, the publisher who made the negative review can voluntarily remove the statement online Google.com as an alternative to litigation.
Therefore, cease and desist notices, demand letters, and the like have been effective for the publisher to remove negative, false reviews online. If such action fails to produce the desired result, then proceed with filing a law suit. The question is, what is the case worth to you in damages? Circuit Court is a slow process and draws out the resolution. Magistrate court tends to be quicker. But, magistrate courts have a cap on hearing cases where the damages are $7,500.00 or less in South Carolina. But, if you're simply looking to obtain a court order for the publisher to remove the defamatory comment, magistrate court may be more appropriate and cost less overall. But, the particular facts of your situation may not warrant that route. As always in the law, it depends. The facts and circumstances of your case can change the legal analysis as to whether you have a case, a strong case, and proceed at a cost-effective route to address these issues.
Academically speaking, this is a fascinating legal issue of applying old concepts to new factual circumstances with advancements in online public forums. But, as fascinating as it may be, this issue can be a real nightmare for some businesses in reality.