In the Internet age of one-click comments and five-star reviews, it takes extra effort to protect your reputation. No business is immune to negative reviews, and how you handle them can make a difference. When a review is ruining your business, there are several ways to approach it. Some businesses respond to negative reviews in the most positive way and focus on obtaining better reviews. Others decide to fight and demand the person to delete the review, send demand letters and file lawsuits. While there are many factors to consider before pursuing the more aggressive path, this blog focuses on legal avenues that are worth considering.
The potential legal claims against a negative review publisher will vary depending on the jurisdiction and specific circumstances. Some common legal claims may include:
1. Defamation is the intentional publishing of a false and unprivileged statement, either in writing ("libel") or orally ("slander"). Videos, photos, comments, or written reviews on the Internet can be defamatory if:
Remember, truth is a defense against defamation, as well as certain privileges (for example, if the reviewer wanted to protect important public interests of safety, health, or similar interests). The intent to defame is also an essential element that requires a certain level of proof. Defamation has extensive case law behind it, so it is better to consult with an attorney regarding the validity of your claims.
2. Trade libel is the intentional disparagement of the quality of property, resulting in damage to the business' economic interest. The disparaging statement must not only be false but also induce others not to deal with the company. An ambiguous statement ("It was a bad product") or a subjective opinion ("I didn't like it") is not enough to show trade libel. To prove trade libel, there also must be specific damage, not just a general decline in business. This sometimes makes it hard to pursue trade libel.
3. False light is a highly offensive public disclosure of information creating a false impression about the person and damaging his/her property, business, profession, or occupation. While closely related to defamation, false light may be present when a person publishes truthful statements, but in a highly offensive false light.
4. Breach of contract
If the reviewer is a current or former client and their review contains false or misleading statements that breach a contractual agreement, you may have grounds for a breach of contract claim. This could be applicable if the reviewer violated a non-disparagement clause, a non-disclosure agreement, or other contractual obligations.
5. Invasion of privacy
If the reviewer exposed facts about your private life or intruded in your private secluded space, even if the facts or photos are true, you have the right to stop unwarranted and undesired publicity (the right to be left alone).
The right of privacy is constitutionally protected, but it is not unlimited. This right is usually decided by balancing competing interests and factors, whether there is a reasonable expectation of privacy, how serious the intrusion is, and what interests the opponent has (safety, health, newsworthiness, protection of children, or the like).
6. Trade secrets and confidentiality
When a reviewer posted something that was not supposed to be available to the public and has a commercial value by being secret (for example, a supplier list, pricing strategy, or a signature menu recipe), you may have a claim of misappropriation of trade secrets.
7. Copyright infringement
In some cases, a bad review may include unauthorized use of copyrighted material, such as images, logos, or written content. However, it is likely that the review falls under the "fair use" exception if the reviewer used the copyrighted material for the purpose of comment, criticism, teaching, or other purposes that differ from the original purpose.
8. Unfair competition
In certain circumstances, a negative review may be part of a broader campaign to harm your business's reputation through unfair competition practices. If you can establish that the reviewer engaged in false advertising, deceptive trade practices, or other unfair competition tactics, you may have a claim under unfair competition laws.
9. Intentional interference with a contract or economic advantage
When the review was directed to disrupt a contract (or a potential business relationship) with another party, you may also have interference claims.
10. Intentional infliction of emotional distress
If the review constitutes an outrageous conduct that caused you to suffer severe emotional distress, then you may also claim infliction of emotional distress. However, the conduct must be so outrageous that it exceeds all bounds of civility. Generally, mere profanity, obscenity, insults, annoyance, or abuse do not satisfy the requirements of this claim, unless there are aggravating circumstances.
When considering whether to sue for a negative review, you will need to not only assess how strong your claims are but also think of other aspects. Is it worth fighting? How does the false statement impact your business? How to find the person who published the statement? Can you recover any damages from the person? Are there ways to force the platform to delete the review? Is there an "appeal" procedure for contesting the negative comment? What are the platform's terms and conditions? What resources does your business have to pursue the claims?
This blog contains only general information. It is not legal advice.
The potential legal claims against a negative review publisher will vary depending on the jurisdiction and specific circumstances. Some common legal claims may include:
1. Defamation is the intentional publishing of a false and unprivileged statement, either in writing ("libel") or orally ("slander"). Videos, photos, comments, or written reviews on the Internet can be defamatory if:
- they expose any person to hatred, contempt, ridicule, or cause that person to be shunned or avoided, or
- that has a tendency to injure that person in his or her occupation. Cal. Civ. Code Section 45.
Remember, truth is a defense against defamation, as well as certain privileges (for example, if the reviewer wanted to protect important public interests of safety, health, or similar interests). The intent to defame is also an essential element that requires a certain level of proof. Defamation has extensive case law behind it, so it is better to consult with an attorney regarding the validity of your claims.
2. Trade libel is the intentional disparagement of the quality of property, resulting in damage to the business' economic interest. The disparaging statement must not only be false but also induce others not to deal with the company. An ambiguous statement ("It was a bad product") or a subjective opinion ("I didn't like it") is not enough to show trade libel. To prove trade libel, there also must be specific damage, not just a general decline in business. This sometimes makes it hard to pursue trade libel.
3. False light is a highly offensive public disclosure of information creating a false impression about the person and damaging his/her property, business, profession, or occupation. While closely related to defamation, false light may be present when a person publishes truthful statements, but in a highly offensive false light.
4. Breach of contract
If the reviewer is a current or former client and their review contains false or misleading statements that breach a contractual agreement, you may have grounds for a breach of contract claim. This could be applicable if the reviewer violated a non-disparagement clause, a non-disclosure agreement, or other contractual obligations.
5. Invasion of privacy
If the reviewer exposed facts about your private life or intruded in your private secluded space, even if the facts or photos are true, you have the right to stop unwarranted and undesired publicity (the right to be left alone).
The right of privacy is constitutionally protected, but it is not unlimited. This right is usually decided by balancing competing interests and factors, whether there is a reasonable expectation of privacy, how serious the intrusion is, and what interests the opponent has (safety, health, newsworthiness, protection of children, or the like).
6. Trade secrets and confidentiality
When a reviewer posted something that was not supposed to be available to the public and has a commercial value by being secret (for example, a supplier list, pricing strategy, or a signature menu recipe), you may have a claim of misappropriation of trade secrets.
7. Copyright infringement
In some cases, a bad review may include unauthorized use of copyrighted material, such as images, logos, or written content. However, it is likely that the review falls under the "fair use" exception if the reviewer used the copyrighted material for the purpose of comment, criticism, teaching, or other purposes that differ from the original purpose.
8. Unfair competition
In certain circumstances, a negative review may be part of a broader campaign to harm your business's reputation through unfair competition practices. If you can establish that the reviewer engaged in false advertising, deceptive trade practices, or other unfair competition tactics, you may have a claim under unfair competition laws.
9. Intentional interference with a contract or economic advantage
When the review was directed to disrupt a contract (or a potential business relationship) with another party, you may also have interference claims.
10. Intentional infliction of emotional distress
If the review constitutes an outrageous conduct that caused you to suffer severe emotional distress, then you may also claim infliction of emotional distress. However, the conduct must be so outrageous that it exceeds all bounds of civility. Generally, mere profanity, obscenity, insults, annoyance, or abuse do not satisfy the requirements of this claim, unless there are aggravating circumstances.
When considering whether to sue for a negative review, you will need to not only assess how strong your claims are but also think of other aspects. Is it worth fighting? How does the false statement impact your business? How to find the person who published the statement? Can you recover any damages from the person? Are there ways to force the platform to delete the review? Is there an "appeal" procedure for contesting the negative comment? What are the platform's terms and conditions? What resources does your business have to pursue the claims?
This blog contains only general information. It is not legal advice.
