Negative review – should you sue?

Apr 5, 2016 by David Gittelman

You just received a negative, anonymous review on Avvo, Yelp, lawyerratingz, or some other legal (or quasi-legal) review site. You’re angry, because you think it’s unfair, inaccurate, or (worse) fabricated just to harm your reputation. You want the review taken down; you want to confront the reviewer, and you want to sue him or her for defamation. Can you do any of these things successfully? More importantly, should you? As discussed below, even if you could, you probably should not.

Legal hurdles

First, it is undisputed that “The First Amendment protects the right to speak anonymously. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342, 115 S. Ct. 1511 (1995). This right applies equally to online speech. In re Anonymous Online Speakers, 661 F.3d1168, 1173 (9th Cir. 2011).” Thomson v. Jane Doe, 4 No. 72321-9-I (Wash. Ct. App. Jul 06, 2015). Further, “Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation omitted.]’” Wong v. Jing, 189 Cal.App.4th 1354, 1370 (Cal. Ct. App. 2010). “I think Joe Smith is an unethical attorney” is likely protected speech, but, “Joe Smith is an unethical attorney” is likely not protected. The essential elements of a defamation claim [in California] are “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

Presuming the review contains some type of negative allegation of fact, the next issue becomes what evidentiary standard is applied to the review? This depends on the nature of the speech involved. In Thomson, the court asked (and answered) this exact question. “[W]hat is the nature of the speech at issue?” (Thomson) “We agree with Anonymous: the evidentiary standard should match the First Amendment interest at play.” Id. “While Doe’s speech is not commercial, warranting the lowest protection, it is also not political, warranting the highest. Thus, Doe’s speech is entitled to an intermediate level of protection.” Id. While the federal courts have varied some in terms of what standard to apply, you can anticipate that all courts will afford some level of First Amendment protection to a reviewer’s comments.[1] The Thomson court went on to hold that the plaintiff in a defamation case against an anonymous reviewer must make a prima facie showing of a viable cause of action before the court will grant access to the anonymous reviewer’s name. If you cannot establish this, your defamation case will be dismissed at an early stage.

Further, in the case of the anonymous poster, many review sites have formal policies to help avoid false and defamatory reviews. For example, Avvo’s policy states,“Avvo provides an open forum for clients to leave feedback regarding attorneys. At the same time we have checks in place to maintain the quality and validity of our client reviews. We also require users to register before submitting a review. We then read every review before it is posted. Lastly,we rely on the Avvo community to let us know if a review seems suspicious or incorrect.”

Yelp’s policy provides the following:

“Conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn’t write reviews of your own business or employer, your friends’ or relatives’ business, your peers or competitors in your industry, or businesses in your networking group. The best reviews are passionate and personal. They offer a rich narrative, a wealth of detail, and a helpful tip or two for other consumers.

Personal experience: We want to hear about your firsthand consumer experience, not what you heard from your co-worker or significant other. Try to tell your own story without resorting to broad generalizations and conclusory allegations.

Accuracy: Make sure your review is factually correct. Feel free to air your opinions, but don’t exaggerate or misrepresent your experience. We don’t take sides when it comes to factual disputes, so we expect you to stand behind your review.”

While these policies are far from perfect (and some sites have no policies), the court will consider the website’s policies before ruling on the release of an anonymous reviewer’s name.[2]

Let’s presume you can make a prima facie showing of a viable claim to obtain the name of the anonymous reviewer, or that you already have the name of the reviewer. The next procedural hurdle you will likely face is an anti-SLAPP motion. (Most states have some type of anti-SLAPP procedures.) SLAPP is an acronym for Strategic Lawsuit Against Public Participation, and is primarily designed to “chill” the exercise of free speech. If faced with an anti-SLAPP motion, you will have to, at the initial pleading stage, establish that: (1) the review was not part of any protected activity and (2) there is a reasonable probability of prevailing on the merits. If you lose the motion, the court will order you to pay the prevailing party’s attorneys’ fees and litigation costs.

Yelp also recently assisted in drafting a federal anti-SLAPP law, entitled the SPEAK FREE Act of 2015. While it has not become a law yet,it has gained ground. The Act provides as follows:

Amends the federal judicial code to allow a person against whom a lawsuit is asserted to file a special motion to dismiss claims referred to as strategic lawsuits against public participation (“SLAPP suits”) that arise from an oral or written statement or other expression, or conduct in furtherance of such expression, by the defendant in connection with an official proceeding or about a matter of public concern. Defines “matter of public concern” as an issue related to: (1) health or safety; (2) environmental, economic, or community well-being; (3) the government; (4) a public official or public figure; or (5) a good, product, or service in the marketplace. Requires courts to grant such a special motion to dismiss if the party filing the motion makes a prima facie showing that the claim asserted against them is a SLAPP suit, unless the responding party demonstrates that the claim is likely to succeed on the merits.[3]

If you manage to get past the pleading stage, you will still have the burden of proof as to all of the elements of your defamation case, including the amount of damages you sustained solely as a result of the negative review. So, should you try and jump through these procedural hurdles so that you can proceed with your defamation case? There answer is no, because even if you win your case, it will likely be a pyrrhic victory,[4] based on the amount of potential recovery relative to the time and effort involved.

Non-legal reason suing is unwise

The last reason suing is a bad idea is something known as the “Streisand Effect”. The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. A lawsuit filed by Barbra Streisand endeavored to remove an aerial photograph of Streisand’s mansion from a publicly available collection of 12,000 California coastline photographs. The photographs documented coastal erosion as part of the California Coastal Records Project, which was intended to influence government policymakers. Before Streisand filed her lawsuit, “Image 3850” had been downloaded from the website only six times; two of those downloads were by Streisand’s attorneys. As a result of the case, public knowledge of the picture increased substantially, and more than 420,000 people visited the site over the following month.[5]

Take Deborah Thomson as an example of the Streisand Effect. If you Google her now, most of the top search results relate to her own defamation lawsuit (which she lost). What was the better alternative for Ms. Thomson? Try and balance out the negative reviews with enough positive information that a potential client will take the one bad review with “a grain of salt”. (Ms. Thomson must have “seen the light” after her lawsuit, because she now has an 8.6 overall rating on Avvo, and a 4.5 client rating.)

Now that you’ve calmed down after reading that negative review, what should you do? Take action, but take the right action. Get some positive client reviews out there; have a colleague write a peer review; complete your Avvo profile to boost your overall rating. If you don’t have the time or desire to do this, hire someone who will do it for you. Ignoring negative reviews will only hurt your own reputation. Fighting them will likely make you look silly (and you will probably lose anyway, either in actual court or the court of public opinion). Since your legal reputation is now online, your reputation is riding on taking action.

Citations:

[1] Only one court has significantly strayed from Dendrite and Cahill. The Virginia Court of Appeals declined to adopt either test, instead applying a state statute that required a lower standard of proof. Yelp, Inc. v. Hadeed CarpetCleaning, Inc., 62 Va. App. 678, 695-97, (2014), rev’d on other grounds, 770 S.E.2d 440 (2015). Under the Virginia statute, a defamation plaintiff seeking an anonymous speaker’s identity must establish a good faith basis to contend that the speaker committed defamation, Id. at 699. Thomson.

[2] The Thomson court noted that, “The final issue we address is Avvo’s attempt to serve as the arbiter of Doe’s identifying information. Obtaining information from the anonymous poster allowed Avvo to make an informed response to Thomson. Once in that position, Avvo should have afforded the trial court the opportunity for in camera review, so that it too could ground its decision in fact rather than speculation.” Thomson v. Jane Doe, 16 No. 72321-9-I (Wash. Ct. App. Jul 06, 2015)

[3] See, www.govtrack.us congress summary for more information.

[4] A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat.

[5] www.en.wikipedia.org/wiki/Streisand_effect