You are a hardworking business owner. You cherish your sterling reputation in the community—including your 4.5 star average on Yelp and Google reviews. But one morning you are woken up by the chime of your email notification on your phone and, to your infinite dismay, someone has left a scathing review of your business on Yelp. Not only is the review uniformly negative and one-sided—it’s completely false too. What do you do?
There is no easy answer to this question. This is a situation that many business owners find themselves in and, unfortunately for them, there is a large obstacle to bringing the hammer down on reviewers—online or otherwise—that smear your reputation: the First Amendment. The rules governing when a false statement is legally actionable is Byzantine, and the analysis is only complicated when the false statements are made online—doubly so when the reviewer is anonymous. Regardless of these often-labyrinthine rules this article—part one of a two-part series–will lay out a framework of legal strategies for how to respond to negative online reviews. Part two will analyze the same issue from the opposite perspective—that of the negative reviewer.
The First Line of Defense: Quasi-Legal – Terms of Service (TOS) Violations
As discussed below, immediately pulling trigger on a defamation lawsuit is fraught with danger for the plaintiff. Accordingly, more often than not, the best legal strategy for dealing with negative reviews is to attempt to have the review removed for violating the applicable platform’s terms of service (TOS). The TOS are binding on all users and reviewers, and the platform will typically not hesitate to remove a review if its content fits neatly into one of the TOS’s prohibitions.
For example, Glassdoor.com prevents a given user from reviewing the same employer more than once in a year. For some employers, a common fact pattern is a disgruntled former employee “review bombing” the company with negative reviews with slightly different usernames. Although the employer/business may have some difficulty proving it is the same person to justify application of the policy to remove the review, this policy at least gives the business some measure of damage control over the negative reviews of a given former employee.
Somewhat similarly, Yelp has a policy in its TOS that prohibits using a third party’s full name in a review. As can sometimes be the case, if the negative review is targeting a particular employee or representative and the reviewer, in a fit of pique, names that particular person, that is grounds for the removal of the review. That said, the Yelp policy only says that it prohibits the use of someone’s “full name,” which, on its face, means that using someone’s first name or first name and last initial, likely is not enough for Yelp to remove the review.
Regardless of the exact contours of the TOS, it is wise to check the applicable TOS first when dealing with a bad online review. If there is a basis for removal, invoking the TOS is often the quickest and cheapest way of dealing with a bad review.
Legal Option – Defamation/Speech Tort Claims
Who Is the Speaker?
As is often the case with the internet, the issue of anonymity often bears heavily on the online defamation claims analysis. That is, if you want to sue the online reviewer, but you don’t know who they are, how do you sue them?
The reality is that a business owner can often deduce the identity of the negative reviewer based on the content of the review, even if the reviewer is anonymous on the face of the review. However, if you genuinely do not know the identity of the speaker, your options are limited. Internet service providers (ISPs) or online platforms often zealously protect the identities of their users. See, e.g., United States v. Glassdoor, Inc. (In re Grand Jury Subpoena), 875 F.3d 1179 (2017) (“[Glassdoor] . . . argues that ‘anonymity is an essential feature of the Glassdoor community,’ and that ‘if employees cannot speak anonymously, they often will not speak at all,’. . . [and that] forcing Glassdoor to comply with the grand jury’s subpoena subpoena duces tecum will chill First Amendment-protected activity.”).
The recipient of a bad review from an anonymous reviewer seeking to bring a civil defamation-type claim thus has two options. First, the business owner can see if the ISP or platform, on the off chance, does have some kind of unmasking policy for anonymous users, but that is doubtful. The second, and more viable course of action, is to file the complaint against a “Doe Defendant”—meaning a defendant that is subject to identification at a later date after discovery. That said, if your only source of identification of the user is the ISP or the platform, even if your complaint makes it to the discovery stage, the ISP/platform may ultimately stymie your ability to gather information about the identity of the reviewer at all through privacy objections that may outweigh your right to the information. See, e.g., Awtry v. Glassdoor, No. 16-mc-80028-JCS, 2016 U.S. Dist. LEXIS 44804 (N.D. Cal. Apr. 1, 2016) (holding that plaintiff employer’s interest in obtaining identifying information of anonymous reviewer was “significantly outweighed” by the reviewer’s—and the review platform’s—First Amendment interest in maintaining anonymity). This continues to be an intractable problem for business owners on the receiving end of anonymous speech, but it is reflective of a deeper bargain struck between the First Amendment—which courts have held includes the right to anonymous speech —and the comparatively weaker rights of civil litigants fighting over a few fistfuls of filthy lucre. Compare Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (2008) (holding that libel plaintiff seeking discovery of anonymous speaker’s identity must make a prima facie showing of all elements of defamation) with Glassdoor, 875 F.3d at 1191-92 (affirming denial of motion to quash subpoena to Glassdoor regarding identifying information in criminal grand jury proceeding because, under applicable Branzburg test, Glassdoor had not shown that the grand jury was acting in bad faith or a “tenuous connection” between the criminal probe and information sought).
Do You Have Jurisdiction?
If you are able to identify your negative reviewer, you may be faced with another obstacle: is your negative reviewer even within the jurisdiction of the court you might want to sue in—or even within the jurisdiction of any court within the United States?
It’s a cliché at this point to invoke the world-shrinking powers of the internet, but those powers are on full display in the context of negative online reviews. That is, it is incredibly easy for someone in a different state, country, or continent to negatively review a business—especially now that e-commerce and associated logistical and communications technology has made it easy for even a small business to provide their goods and services across the globe. In that scenario, where the negative reviewer is located in another state or country, the business owner must analyze whether the speaker has sufficient contacts with the forum state—not the plaintiff/business owner who happens to be in the forum state—such that the court may exercise jurisdiction over the out-of-state (or country) reviewer defendant. See Axiom Foods, Inc. v. Acerchem Int’l, Inc., 874 F.3d 1064, 1070 (9th Cir. 2017) (citing Walden v. Fiore, 571 U.S. 277, 287-88 (2014) (noting that the Supreme Court in Walden rejected the theory that “‘knowledge of the plaintiffs’ strong forum connections,’ plus the ‘foreseeable harm’ the plaintiffs suffered in the forum, comprised sufficient minimum contacts under the purposeful direction test).
More specifically, the business owner must apply the “purposeful direction” test—the subspecies of the law-school-famous International Shoe minimum contacts test—which applies to tort claims (as opposed to the “purposeful availment” test applicable to contract claims). Williams v. Kula, No. 20-CV-1120 TWR (AHG), 2020 U.S. Dist. LEXIS 244769, at *6-7 (S.D. Cal. Dec. 29, 2020). “Purposeful direction ‘requires that the defendant have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.’” Id. at *7 (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 803 (2004)). Of course, leaving a bad review easily meets element one of this test. The trick is meeting element two, commonly known as the “express aiming” requirement, and to a lesser extent, element three. That is, most of the time, the conduct is aimed at the target of the review, not the forum state itself—after all, on a website like Yelp, theoretically anyone with internet access can view that review, not just people within the forum state.
On the other hand, the California Court of Appeal in Burdick v. Superior Court, 233 Cal. App. 4th 8 (2015), has provided a framework which victims of online defamation can use to determine whether personal jurisdiction exists over the online reviewer defendant(s). In Burdick, the Illinois-resident principal of a skin care company (defendants), upon receiving a skeptical review by plaintiff doctors, began a campaign of online defamation, including several disparaging posts on his personal Facebook page. Id. at 14-15. The court held that although the Facebook page was publicly available and that it was directed at a California resident, there was not personal jurisdiction over the Illinois defendant in light of Walden. Id. at 25 (“[M]erely posting on the Internet negative comments about the plaintiff and knowing that the plaintiff is in the forum state are insufficient to create minimum contacts. . . . Walden emphasize[s] the difference between conduct directed at the plaintiff and conduct directed at the forum state itself . . . .”). However, the Burdick court did list some factors that could have supported a finding of purposeful direction:
Plaintiffs did not produce evidence to show Burdick’s personal Facebook page or the allegedly defamatory posting was expressly aimed or intentionally targeted at California, that either the Facebook page or the posting had a California audience, that any significant number of Facebook ‘friends,’ who might see the posting, lived in California, or that the Facebook page had advertisements targeting Californians.
This verbiage is instructive in an online review context. If your business has a physical presence in a given area—say, southern California, and your clientele is overwhelmingly Californian, even if your negative reviewer is in Florida, there would likely be personal jurisdiction under the Burdick factors above. See Russell v. Samec, No. 2:20-cv-00263-RSM-JRC, 2020 U.S. Dist. LEXIS 226125, at *12-15 (W.D. Wash. Oct. 8, 2020) (exercise of jurisdiction proper where defendant posted comments on social media referencing the location in Washington of plaintiff’s business); Gallgher v. Maternitywise Int’l, LLC, No. 18-00364 LEK-KJM, 2019 U.S. Dist. LEXIS, at *17-18 (D. Haw. Feb. 27, 2019) (holding personal jurisdiction existed where there was proof that defendant had been informed of location of plaintiff’s business in Hawaii and thereafter posted defamatory comments on plaintiff’s Facebook business page). On the other hand, a negative Google review of a large national company does not necessarily imply the same level of forum state targeting. See Smart Energy Today, Inc. v. Hoeft, No. CV 15-8517 DSF (AJWx), 2016 U.S. Dist. LEXIS 187571, at *4-5 (C.D. Cal. June 20, 2016) (negative posts on Yelp and AngiesList where plaintiff did not allege that there was any aiming at California was insufficient to find personal jurisdiction).
Is the Review a Non-Actionable Statement of Opinion?
Although the issue of whether the disparaging statement is one of opinion or fact is part of the general defamation claims analysis and not a prerequisite like defendant identification and personal jurisdiction, in the context of online reviews—which are often directly related to matters of opinion—it behooves the prospective plaintiff to perform the analysis as it if were a prerequisite. An actionable defamatory statement must be one of fact, not opinion. CACI 1707. It sounds simple enough, but the line between opinion and fact in defamation cases is razor thin, if not completely porous.
For example, a California jury recently found that business tycoon Elon Musk’s tweet that Vernon Unsworth, one of the diving rescuers of the Thai boy scouts that became stuck in a cave in that country, was a “pedo guy”—an insult flung at him after Mr. Unsworth criticized Mr. Musk’s attempts to insert himself into the efforts to rescue the scouts—was a statement of opinion (or insult) rather than fact. In a less sensational case, the Court of Appeal in Chaker v. Mateo, 209 Cal. App. 4th 1138 (2012), showed a similarly blasé attitude toward inflammatory statements made on the internet. In that case, the Court characterized defendant’s statements, made on plaintiff’s business’s page on the Ripoff Report website, that the plaintiff was a “criminal and a deadbeat dad” and that he was patronizing prostitutes as “exaggerated or insulting criticisms” that constituted a “negative, but nonactionable opinion” that plaintiff was a “dishonest and scary person.” Id. at 1149. Despite the seemingly black-and-white factual nature of these statements, the court went further to say that “it is difficult to conclude [defendant’s] alleged embellishments, to the effect [plaintiff] picks up streetwalkers and homeless drug addicts and is a deadbeat dad, would be interpreted by the average internet reader as anything more than the insulting name calling—in the vein of ‘she hires worthless relatives,’ ‘he roughed up patients,’ or ‘he’s a crook’—which one would expect from someone who had an unpleasant personal or business experience with [plaintiff] and was angry with him rather than as any provable statement of fact.” Id.
In short, California courts (and juries) are very quick to dismiss heated speech on the internet as just that—name-calling or insults. So if you receive a negative review that blasts your business as “full of cheats” or “a ripoff” or “run by criminals out to steal from you,” think twice before running to the courthouse.
This is merely the first part of the analysis of a defamation-type claim arising from an online review. As one can see, the process is positively fraught with potential pitfalls in bringing your claim to fruition. Accordingly, any prospective defamation plaintiff should use extreme caution before embarking on the path to the courthouse.
In Part 2, we will examine the critical (and often dreaded) next phase in the claims analysis if the threshold issues can be met—the two-step anti-SLAPP analysis.