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The Internet is often idealized as an international free speech zone where individuals are free to express whatever they want without repercussions. For most people, most of the time, this is true, but recent revelations about government-sponsored surveillance programs What Is PRISM? Everything You Need to Know What Is PRISM? Everything You Need to Know The National Security Agency in the US has access to whatever data you're storing with US service providers like Google Microsoft, Yahoo, and Facebook. They're also likely monitoring most of the traffic flowing across the... Read More have made it clear that what you say online can be used against you.

You have to worry about more than your neighborhood’s friendly spy agency. Companies are also getting in on the act, chasing down negative commenters and reviewers with threats of legal action. How serious is this problem, and what can you do to receive an unexpected letter from a lawyer?

Not Happy? Have A Fine!

New stories of review retaliation appear frequently; a woman in Arizona was sued for slamming a local auto repair shop over shoddy work, online merchant KlearGear fined a Utah couple for disparaging the company’s customer service, and a Chicago resident received a legal threat from a concrete company over a “F-” rating on Angie’s list.

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To say such threats are common would be a stretch, but they’re certainly a risk anyone who posts online reviews Online Reviews Are Useful, With Common Sense Applied [We Ask You Results] Online Reviews Are Useful, With Common Sense Applied [We Ask You Results] It seems most of you do use online reviews, though the methodology varies from person to person. Read More should be aware of. Putting together a threatening letter is relatively cheap, and companies sometimes send them to reviewers knowing that most won’t bother to put up a fight.

On What Grounds?

There are two particular legal arguments plausible enough to at least give reviewers on the receiving end of a threatening letter pause. These boil down to defamation and breach of contract.

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Defamation is generally defined as “communication of a false statement that harms another’s reputation.” Many local fights between a small business and an online reviewer hinge on this concept. The plaintiff argues the defendant lied, and so should pay the plaintiff damages because the false accusations hurt the company reviewed.

Many countries have laws against defamation (also called slander or libel, depending the specifics), but their strength varies. Winning a defamation case is difficult in the United States because the plaintiff must generally prove the defendant made the statement with “actual malice,” i.e. a knowing disregard for the truth.

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In some European countries, however, in defamation laws say, it’s up to the defendant to prove his or her statement was not knowingly false. And in the Philippines a recent law states that libel committed “through a computer system” is a crime punishable by up to 12 years in prison, though civil rights organizations in the country have made claims that this is unconstitutional.

The other common legal argument is breach of contract. As you’re probably aware, many companies now require that users agree to a “terms of service” document 10 Ridiculous EULA Clauses That You May Have Already Agreed To 10 Ridiculous EULA Clauses That You May Have Already Agreed To Let’s be honest, no one reads EULA's (End User Licensing Agreement) - we all just scroll down to the bottom and click "I Accept". EULAs are full of confusing legalese to make them incomprehensible to... Read More , and a few devious companies have placed terms inside their agreement that prevent disparagement of the company under threat of a fine. This is the tactic used by KlearGear, which baked a $3,500 fine for disparaging comments in a 2012 terms of service update.

Prevent Lawsuits Before They Happen

Not all lawsuits can be avoided. The KlearGear case is a great example, as it seems the company didn’t include the disparagement clause in the terms of service the couple originally agreed to, giving it no grounds to sue even if the dubious clause was considered valid. The company has been counter-sued, and its prospects don’t look good. This is a good lesson; anyone can send you a legal threat for any reason, but that doesn’t mean it will hold up in court. Still, you can reduce your risk.

kleargearlawsuit

Your best bet is to stick with constructive, factual reviews of services or products you’ve actually used. This means talking about your experience rather than your feelings. A review that says the owner of your local pizzeria is a big fat jerk because she served you a cold slice and then refused to replace it may seem justified at the time, but it’s going to make the owner mad and give the slightest hint of grounds for a lawsuit.

Stick to what happened. You ordered a slice of pizza and it was cold, and you weren’t given a new slice or a refund when you asked for it. Attach a one-star rating and call it a day. Besides reducing your chance of legal troubles and tightening up your defense if you are sued, sticking with the facts makes your review more powerful. Think about when you look at reviews yourself Online Reviews Are Useful, With Common Sense Applied [We Ask You Results] Online Reviews Are Useful, With Common Sense Applied [We Ask You Results] It seems most of you do use online reviews, though the methodology varies from person to person. Read More – do you find the people who hurl insults or make fantastic claims credible? Probably not.

Terms of service can be harder to deal with, and it’s not reasonable to say you should read them in your entirety. However, if you’re worried about a disparagement clause, it’s easy enough to do a search for words like libel, slander, fine, disparagement or defamation – if the document is available online, that is.

Conclusion

99.999999999% of the time the Internet really is anonymous, at least so far as consequences are concerned. In most parts of the world you can say almost anything online without worrying (much) about what will happen.

But then, once in awhile, something happens to remind us the Internet exists in the real world, not a fantasy-land of limitless free speech. As tempting as it might be to throw out a horrible review when you have a bad experience, you should give what you’re saying a second thought. Defamation cases, though not common, do happen, and what you’ve said can be used again you.

Keep calm, stick to the facts, be constructive – and if someone tries to sue you anyway, counter-sue the nuts off them!

Image Credit: Flickr/Eric Chain, Flickr/Orangesparrow

  1. A.H.
    January 20, 2015 at 1:26 am

    Online Reviews have gone crazy. I own a business and I understand the power of influence they have over new potential clients. I understand we screw up sometimes -we're only humans- and we deserve one. Fortunately our reviews are 99 positive across most sites, but we feel on the edge all the time.
    I would REALLY like to see these companies publishing reviews ASKING for proof of purchase to allow someone to post something, either good or bad. Many of our competitors cheat, either posting good stuff about themselves, or bad about others .
    I think we need less anonymity, more accountability and less "bad review" extortion from customers.
    With a real proof of purchase reviews will come from real people, in the most part, at least until someone else figures out how to beat the system.
    Reviews are a good idea with many, many flaws and should be reconsidered at its core, seriously.

    • Matt W
      August 20, 2016 at 2:33 pm

      Is it Okay for a business to retaliate against a review that results in harassing the customer and verbal threats?

  2. ken
    January 6, 2015 at 12:21 am

    Angie's list states they have the right to change the "terms and conditions" of their contract with advertisers as they see fit. I. Signed a one year contract and half way through they changed the entire spirit of the agreement. Instead of being in top rotation on first page they took and threatened I pay and continue my 42k contractual agreement or they would post a dead beat clause on my review site. STRONG ARMING! and yet people believe in the site's moral standing.....

  3. ken
    January 6, 2015 at 12:15 am

    Yelp charges companies to post or "recommend" positive reviews. I have one negative and 12 positive. Only negative is front and center. I know this is fact as they tried exporting money for " advertising"....

  4. Dave
    February 3, 2014 at 5:01 pm

    It goes both ways... in Virginia a company is trying to pry some names out of Yelp to find out if the severely negative reviews were written by customers or not. If not... seems perfectly fair to sue those people for libel.

    OTOH if they were customers then companies should be required to take on the chin for any bad review (save proof of an extortion attempt).

    Fairness needs to go both ways.

  5. Joel L
    February 3, 2014 at 4:27 pm

    When I saw the article title, my immediate reaction was that suing over online reviews is ridiculous. But, after more thought, it's entirely reasonable that someone should be reprimanded and punished for being untruthful, even malicious... as long as the penalty is commensurate. 12 years in prison? That's a bit much. A fine would be more reasonable.

    • dragonmouth
      February 3, 2014 at 5:29 pm

      "my immediate reaction was that suing over online reviews is ridiculous"

      But that is the way companies try to control their image. From personal experience I know that eBay dislikes it intensely when users leave negative ratings, especially about eBay's featured sellers. While, to my knowledge, they have not sued anybody yet, their moderators do exert pressure to have negative ratings/comments changed to positive or at least neutral ones.

    • Matt W
      August 20, 2016 at 2:34 pm

      Ebay stopped sellers from being able to leave negative reviews about buyers.

    • fcd76218
      August 20, 2016 at 4:08 pm

      That happened 3-4 years ago. How can a seller with 5,000-10,000 transactions have only a few dissatisfied customers. eBay ratings cannot be trusted.

  6. Lynne M
    February 2, 2014 at 7:06 pm

    I use EULAlyzer. http://www.brightfort.com/eulalyzer.html. It scans, and highlights, the "interesting" language. You can then read those parts. I love it!

  7. Doug
    February 2, 2014 at 5:52 pm

    Not completely reading a legal document that you sign is definitely misplaced trust. In today's world you just can't do it. The "spoken word and handshake" have gone the way of the buggy whip!

    I a bit surprised by the possible issues under law in many European countries. It was always my feeling that these laws leaned toward the consumer and not toward business.

    In the USA is there much/any case law that supports decisions in this type of situation?

  8. Steve S
    February 2, 2014 at 1:43 pm

    I'll say whatever I bloody well want, whenever bloody well wish!!

    • Matt S
      February 2, 2014 at 7:11 pm

      You can, but you might get sued for it :)

    • Dave
      February 3, 2014 at 5:02 pm

      It better be true tho.

    • Steve S
      February 4, 2014 at 5:00 am

      The truth, the whole truth, and nothing but the truth.

  9. Gary
    February 1, 2014 at 9:10 pm

    When you said this, "Terms of service can be harder to deal with, and it’s not reasonable to say you should read them in your entirety.", did you really mean to say "it is not UNREASONABLE to say you should read them in THEIR entirety"? Changes in capitals, but the first change is the critical one to the meaning, methinks.

    If you're signing what essentially is a contract saying you have read and agree with something, actually reading and agreeing with is a good idea, is it not? Thanks.

    • Matt S
      February 2, 2014 at 7:10 pm

      No, I meant what I typed. I don't think it's reasonable for me to suggest "if you don't want to get caught on an EULA gotcha, then always read the EULA." No one is going to actually take that advice.

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