By: Neil L. Wojtal
Here is a common scenario:
There is a website that encourages anyone to post reviews of your services/products. Someone posts a negative review anonymously basically saying that your service/product stinks. Sound familiar? You want the negative review removed because you believe it may scare off potential customers. You decide to file a defamation lawsuit. Is this a good idea? Maybe not. Here are some points to consider before you file that law suit.
Since the person posting the negative review is anonymous, you would have to name the person as "John Doe" in the law suit. The idea would be to use the law suit to subpoena the records of the website to obtain the name of the anonymous poster. However, this is easier said than done.
Unfortunately, the law is stacked against you. Most sites that are designed to encourage venting, will not remove statements made from their sites. This is true even if the statements are proven to be false (the basis of a defamation lawsuit). This is where the real world and the online world diverge. If the New York Times allowed a defamatory statement to be published in their paper, they can be held liable. This is because they function as editors of all opinion pieces. The same is not true for many of these websites. The sites are designed to encourage opinions. The site owners allow anyone to say anything. They do not edit the comments. Congress recognized this fact with the passage of the Communication Decency Act in 1996. The act held that internet service providers are not responsible for the materials posted as long as they don't act as publishers/editors of the material. This immunity has been confirmed in the case law subsequent to the passage of the Act. The protection afforded these websites will prevent them from removing the material and getting the website to provide the information requested in your subpoena will be an uphill battle.
Even if you somehow succeed in getting the website to remove the review, the fact that you filed a law suit will create more on-line records. As a result, when your company name is searched, more hits will pop up, defeating the whole purpose of the law suit. In addition, potential customers may view the law suit filing as an over-the-top reaction. Why are you reacting so forcefully to one negative review? Do you have something to hide? This is especially true if you have a number of positive reviews that counteract the negative review.
What should I do to counteract the negative review?
When it comes to fighting negative reviews, your best defense is an SEO (search engine optimization). Working with an expert such as a reputation management firm, you can have positive published material about you move to higher ranking on search engines until the negative review page is moved to the second page and beyond. Most people performing a search rarely look past the first page. I know this may not seem like the answer a lawyer would give, but sometimes your best attack is to go head to head with the websites. Note that these services can be expensive. There are several available like www.removenegativelink.com, www.removeslander.com and www.reputationarmor.com.
The other way to get a person to take down the negative review would be to offer a settlement. Of course, you would still need to identify the person to make this happen. In the event you do negotiate a settlement that requires the person to take down the negative review, you would need a written and binding settlement agreement to make sure the person will comply.
Remember, defamation is difficult to prove. The statements made must be proven to be false. Sometimes your best defense is a non-legal solution.
This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.