by Leonard A. Bellavia, Senior Partner, Bellavia Blatt & Crossett, PC

The Internet has given individuals unprecedented power to share information with one another.  Our society has become more mobile and people use technology to share photographs, locations and updates.  Reviewing businesses is a natural extension of individuals’ desire to share their opinions.  Before, disgruntled customers had very few ways to get the word out if they were dissatisfied with the service they received.  Now, consumers can turn to review websites like Yelp! or RipOffReports, or use social media like Twitter and Facebook to share their positive or negative reviews.  As a business owner, you probably take customer complaints very seriously.  In regards to negative reviews posted online, businesses may feel frustrated since, in many cases, they have little recourse to address honest assessments or rebut ones they believe are malicious or false.   What steps may a business take to address negative reviews posted online?

The courts do not offer many opportunities for redress of negative reviews that are truthful or honest opinions.  First, federal law shields businesses from litigation arising from content posted by third parties to websites, blogs or other platforms the business owns.  That often leaves the actual individual who posted the material as the only viable target for litigation.  It is difficult to obtain the identity of an anonymous reviewer.  The website hosting the negative review will not release the identity of the individual responsible without judicial intervention.  Worse, if the reviewer provided false information to the website or took other steps to remain anonymous, you will have no one to sue.  Assuming you can find the identity of the reviewer, you will need to show that the reviewer somehow broke the law when posting the review.  You cannot sue someone who expresses an opinion that cannot be proven or disproven with facts.  So reviewers can say that you’re obnoxious or charge too much for your services but cannot make a false statement of fact that is injurious to your business.  As you may expect, the latter can be very hard to prove.

Instead of relying on the courts to combat negative reviews, you should establish processes at your business to promptly address negative reviews and work towards resolution of valid complaints initiated by consumers.  Some best practices include:

  • Documenting your policy on how to respond to negative reviews and complaints originating online. You should have a clear process on who responds to the reviews, how appropriate individuals are made aware of the reviews, what steps the designee takes prior to responding to the reviews, and how quickly your designee will respond to negative reviews
  • Identify negative reviews that could lead to enforcement actions by local, state or federal agencies. We are beginning to see agencies monitor business’ conduct online. Reviews grounding in claims of bait and switch, bundling, or packing, or something similar deserve close scrutiny because these are traditionally business practices that are illegal or strongly discouraged
  • Plan your response and take the discussion offline as soon as possible. Assuming the website where the negative review is located allows you to respond, you should carefully plan your response and determine how to move the conversation with the reviewer “offline” and out of the public eye as quickly as possible.  Do not allow employees to respond to negative reviews using ad hominem attacks or with a cavalier attitude towards the reviewer or review.  Your responses should be measured, carefully crafted and based on the understanding that your actions may be easily disseminated to others and used against your business should litigation arise

If your company is dealing with a situation such as this and you need guidance with how best to respond, please call us at 631-224-7000.