Like many people, I seek out Internet sites that provide reviews of products and services I am thinking about purchasing.
I'm looking for reviews that can help me avoid making costly mistakes in choosing the companies I do business with or that can help cement a decision I am close to making.
Yes, the helpfulness of these reviews varies — some are so vague I have to wonder if the writer really has experience with the product or service being reviewed, and some are so detailed I'm convinced a company representative wrote it. And then there is a whole other category of reviews reserved for consumers who have been "done wrong." They are scathing, ranting affairs laced with intense vindictiveness and exclamation marks.
If your company has ever been the victim of an online review that flamed the company's products or services, you know such a review is not easy to just brush off. Like it or not, even if the review is questionable because it was written anonymously or is obviously over the top, people reading that review will think twice about doing business with you.
So what should you do if your company is suffering from an unjust, anonymous, review?
A company can sue a reviewer for defamation when the company's good reputation has been unjustly or falsely harmed by the reviewer. To make a good claim for defamation, the company needs to show that the statement was, in fact, defamatory (in other words, it was not true and it hurt the company's reputation), was made public in some manner (which is generally easy to show with an online posting), that the statement was made about the company, and that readers understood who the reviewer was discussing and took the statements as conveying a negative about the company.
It is important to note that there is no defamation if the reviewer can show the truth of what he or she said in the review.
Of course, even if a company has been defamed by an online review, it can be difficult to figure out who wrote it, since many websites allow "anonymous" reviews or permit writers to sign up under pseudonyms. However, the identity of an anonymous or "made up" reviewer can often be traced through the website publishing the review or through an Internet service provider back to the computer from which the review was written.
As a result, it is possible to track down the writer. However, forcing a website or ISP to provide the name of a reviewer provides yet another hurdle. In Pennsylvania, a court will generally order a website or ISP to identify anonymous Internet posters or the identity of the person behind a pseudonym if:
1. The anonymous poster gets notice that their identity is being sought through a court proceeding and has a reasonable opportunity to contest the petition;
2. The company has strong evidence that it was defamed;
3. The identity of the poster is being sought in good faith, is unavailable through other means, is directly related to the claim and is fundamentally necessary to secure relief; and
4. The court determines that the reviewer's First Amendment right to free speech is outweighed by the strength of the plaintiff's defamation case. In this regard, speech that is political in nature or that addresses other public concerns (possibly safety of products?) is given higher protection than other types of speech.
In light of all of this, it is apparent that a defamation case is not an easy case to win. As a result, suing a reviewer for defamation is best reserved for a situation where the company's business has been truly hurt and the review is causing more than a small problem.
In other cases, if the website permits it, consider posting your own reasoned response to the review. Your response should be factual and avoid any rhetoric. Ignore the temptation to take on the reviewer in the same style he or she used to write the review. Your response is likely to be more believable than the review itself, undoing much of the harm.
Kim Decker is an attorney with Barley Snyder in Lancaster.