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 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.
To say such threats are common would be a stretch, but they’re certainly a risk anyone who posts online reviews 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.
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.
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, 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.
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 – 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.
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!