Posting bad online reviews seems like every person’s right these days. After a bad experience, real or not, people flock to Yelp, Amazon, Facebook, and maybe even Google + to vent their frustration and pent up rage. But could posting a bad review get you sued?
Well, yes. There are several recent examples of people being sued sued for Yelp reviews, and even lawyers are not above filing suit (surprise, surprise) over bad online reviews. One hotel made the news recently for a policy of fining couples who booked a wedding party there for any bad reviews made by their guests (the hotel has apparently since deleted this policy from its website).
But there’s a difference between the target of a bad online review filing suit and that same business actually winning that suit. So how likely is it that a business will win a lawsuit over a bad review? To answer that, we need to look at the actual elements of what the business will need to prove to win.
These lawsuits are based on a legal concept called libel. Basically, libel is publishing a false statement which is intended to damage the target of that statement. Some jurisdictions, including Florida, split libel up into two categories: “libel per se” and “libel per quod.”
“Libel per se” means that the words in and of themselves so obviously false and defamatory that the injured party doesn’t need to show the party who made them did so with malice.
“Libel per quod” means that the words used weren’t obviously false and defamatory, and so the injured party does have to prove the party making the statement did so with malice.
Let’s look at the actual elements of what a business would need to prove to win a case for libel.
The basic elements of libel:
To prove libel, the business must prove the following things by a preponderance of the evidence:
- The statement was false;
- The statement caused harm (note: has to be something more than just hurt feelings, such as economic harm); and
- The statement was made without adequate research into whether or not it was true or false.
Let’s look at all three elements in some more detail.
The statement was false:
Let’s say there are two basic forms of bad reviews – personal opinions about the product or service, and then “factual” reviews that truthfully or untruthfully make factual statements. Here’s the distinction:
Opinion review: I was unhappy with the food at this restaurant, it tasted like my grandmother had been raised from the dead by the evil spirit of a vengeful Julia Child and made the exact opposite of my favorite meal.
“Factual” review: The food at this restaurant was actually dipped in liquefied dog poop behind the kitchen, I saw it with my own eyes when I went outside to vape. Oh yeah, and all the waiters are convicted felons and terrorists.
Seems pretty obvious, right? The opinion review just spells out the perceptions of that person regarding their experience without making any factual assertions about what did or did not happen. The factual review actually specifies what the person says happened, which was in my example was probably false.
The statement caused harm:
To prove this, the business has to prove that there was some sort of economic harm done as a result of the bad review. This can be done by showing a dip in revenue, or by having an expert testify about the harm that the bad review can have on a business.
The statement was made without adequate research into whether it was true or false:
This should be pretty easy to prove depending on the actual content of the statement.
Does the notice requirement apply to online reviews?
In Florida, before any party brings a lawsuit for libel against a media defendant, they have to give the defendant at least five days notice in writing. Interestingly, although the language of the statute says that the notice requirement applies to statements made “in a newspaper, periodical, or other medium,” this has not been held to apply to online reviews made by consumers.
So, while you could get sued for posting your opinion about a bad experience online, it’s unlikely that the business would actually win at trial. If you make up false statements, however, the business could actually win a lawsuit against you.