As the saying goes your reputation precedes you. In today’s online world the potential new customer might know everything about you because of your cyber reputation. We all use them—social applications to help us find a good place to grab a burger, lay our tired heads, balance a messy check book or fix that fussy faucet. Mixed in with the great reviews are the bad ones that make you cringe, but more importantly they may make you question if you should patronize that business. Whether it’s a complaint about long lines, dirty linens, high prices and small portions, or just total incompetence, you wonder should I really spend my hard earned money there.
Since Gutenberg’s invention of the printing press only the internet has rivaled the printing press’s ability to mass communicate thoughts, ideas and opinions. For example, Yelp.com is a popular website where, according to Yelp, 71 million users read reviews before making a purchasing decision. But what happens when a business owner disagrees with that bad review or believes it to be a lie? If I were an owner of a business, the first thing that would go through my mind would be “let’s sue Yelp because that’s defamation”. In Arizona for a statement to be defamatory the “publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.” Godbehere v. Phoenix Newspapers, Inc. , 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). Of course, the truth will set you free in a defamation lawsuit.
If you disagree with that review, you might think you can sue Yelp because they published the review. You might be chasing good money with bad. In 1996, Congress recognized the importance of protecting online speech, passed section 230 of the Communication Decency Act, commonly known as “Section 230”. Section 230 was passed with the intent to protect Internet services providers from materials provided by users. The gist of Section 230 provides interactive computer services federal immunity from liability for publishing false or defamatory material provided by a third-party user. In plain English, Yelp as an interactive service provider is immune from liability for defamatory or false review so long as that review was posted by a third-party user. The reasoning for this was to extend the internet the highest level of First Amendment protection against government regulation. The last several years have seen many lawsuits by business owners against Yelp, alleging defamation, libel, deception or legal arguments trying to circumvent Section 230. To sum up these cases, the Court’s continually reaffirm that Yelp is protected under Section 230.
You might think “Well if I cannot sue Yelp, I will sue the critic for defamation”. You could, but you have to prove the statement was false and was made with reckless disregard, which usually is an issue of fact that will be decided by a jury. Furthermore, Congress is considering passing a Federal anti strategic lawsuit against public participation or Anti-SLAPP, legislation. Such a law would prevent a business from filing meritless defamation suit for the purpose of intimidating critics with a prolonged and expensive court procedure. If Federal Anti-SLAPP lawsuit passes, it would result in the dismissal of the lawsuit and the business paying the opposing party’s attorney’s fees. My thought for a small business, is do not go there. Potential lawsuits are expensive and the resulting negative attention could be worse than the comment itself.
My grand-father who ran his own business for 50 years would tell me, “The customer is always right” and in the same breath say, “You can’t please everyone every day”. My interpretation was customer service was priority number one but sometimes no matter how hard you try nothing will make that customer happy. So the moral of the story, is ask happy customers to post positive comments about your business and try to resolve customers complaint either privately or publicly through a Yelp Business Account. If that does not end happily, we all know you can’t please everyone. Remember most customers are not turned off by a couple of bad reviews mixed in with a bunch of good reviews.
Daniel Tom, Esq.
Daniel is an attorney with Gonzales & Poirier and was a prosecutor with Coconino County Attorney’s Office for six years. Daniel’s focus at Gonzales & Poirier ranges from civil litigation to criminal law, you can contact him at 928-774-5400.