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 checkbook or fix that fussy faucet. Mixed in with the great reviews are 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 whether you should really spend your hard-earned money there.
Since Gutenberg’s invention of the printing press, only the Internet has rivaled its 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.” Of course, the truth will set you free in a defamation lawsuit.
If you disagree with a 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, and passed Section 230 of the Communication Decency Act, commonly known as “Section 230.” Section 230 was passed with the intent to protect Internet service 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 courts 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 suits for the purpose of intimidating critics with a prolonged and expensive court procedure. If the 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 grandfather, 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’ complaints 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. FBN
Daniel Tom obtained his Juris Doctorate with an emphasis in Environmental and Employment Law. Daniel was admitted to the California Bar in 2005 and the Arizona Bar in 2006. He worked as a law clerk in Maricopa County and practiced law as a contract attorney doing personal injury. He then moved to Flagstaff where for just under six years, he was a Deputy County Attorney at the Coconino Attorney’s Office prosecuting a variety of cases. During that timeframe, he handled a high volume of cases, including several dozens of bench trials and jury trials.
