Business owners must remain vigilant in protecting their online reputations. Customers and clients come armed with social media accounts and mobile devices, purchasing products, and documenting their experiences online for the entire world to see. Information flows over the internet in real-time and spreads like wildfire. When a client has a positive experience, the business reaps the benefits – word-of-mouth marketing is extremely powerful. But that same logic holds true when a client’s experience is a negative one, and when that’s the case, ignoring that negative online chatter is simply incongruous with survival.
Like all businesses, lawyers and law firms must be mindful of what their clients are saying about them online. Now, more than ever, a lawyer’s online reputation is everything. Keeping your finger on the pulse of what is transpiring online as it relates to your business is mission critical.
Google is the dominant review platform in the United States and permits users to rate businesses on a scale of one to five stars. Along with a rating, users can leave written reviews about their experiences with everything from law firms, to plastic surgeons, to watch retailers, to car dealerships. Other review platforms such as Yelp, Avvo, and Tripadvisor offer the same features. These crowdsourced reviews are very much a “go-to” for those looking to gain insight into businesses before setting foot into an office. The power of this “word-of-mouth” marketing is strong – as one example, a Harvard Business School demonstrated that restaurants with lower Yelp ratings have a higher probability of closing.
While it’s true that businesses can’t afford to ignore negative online reviews, there is often no basis for businesses to demand removal of reviews that are simply unfavorable. And even where online reviews rise to the level of being defamatory, Section 230 of the Communications Decency Act protects platforms from being held responsible for third-party user-generated content. Section 230 is a federal law that provides immunity “from ‘any’ claim arising out of content originating from a third party, regardless of the theory underlying the cause of action.” This federal immunity also protects these platforms from being forced by a court of law to remove online reviews, even when they are defamatory.
In 2018, in Hassell v. Bird, the California Supreme Court ruled that a review website cannot be forced to remove a review posted online even where that review is defamatory. Interestingly, this case involved a lawyer and their former client. Unfortunately for the attorney, its principal didn’t know better and upon finding themselves in a difficult situation after a former client posted disparaging reviews on Yelp, they filed a lawsuit against the individual who posted the reviews. Despite obtaining a court order requiring both the former client and Yelp to remove the posts, neither the individual nor the platform did so.
Yelp objected and filed a motion to set aside and vacate the judgment, arguing that the court order against a non-party was ineffective and that Section 230 rendered the platform immune from liability such that it could not be sued and/or subject to a valid removal order.
When the court denied Yelp’s request, Yelp appealed that denial first to the Court of Appeal and then to the California Supreme Court. In a long-awaited decision, the California Supreme Court issued a plurality opinion that reversed the Court of Appeal’s affirmance of the superior court order and instead determined that Section 230 protected Yelp against this sort of “removal order.”
What this means is that all websites and online platforms displaying “user-generated content,” including Yelp and other review sites (as well as all social media platforms) are protected by Section 230 immunity – these review sites cannot be forced to remove reviews, even where those reviews are determined to be false.
Notwithstanding Section 230, websites may choose to voluntarily comply with takedown requests. Generally, these requests are governed by the website’s Terms of Service and Community Standards). In practice, removal of defamatory or otherwise negative reviews from an internet-based review site or platform is not impossible, but it is indeed a challenge.
With all of that in mind, here are a few good rules to live by:
Seriously … Take Online Reviews Seriously
Businesses should treat digital complaints from customers the same way they treat customers standing at a cash register. Ignoring a negative online review is hardly ever the smart option. If a customer flagged down a manager and complained about the cleanliness of the dressing room in a retail store, the store would very likely remediate this issue quickly – perhaps before that individual left the store. So why would a business treat online reviews any differently? The answer is that they shouldn’t. Businesses should address online complaints by taking the issue seriously and making a good-faith attempt to resolve it. Even if the review is not removed, other potential customers or clients visiting the review site would see the negative review, but they would also see the business’s good-faith attempt to resolve the issue and in many cases, disbelieve the reviewer.
Opinions vs. Lies
A “negative” review is not always “false,” and thus is not always “defamatory.” Even if a review is scathing, a customer is free to express his/her opinion; that is not something that is actionable. But that situation is much different from the one where a customer posts a false review. Be mindful of the difference between “negative” and “defamatory,” and if you discover defamatory reviews about your business, you should consider consulting an attorney and/or crisis management professional
Don’t Be Afraid to Ask
As the California Supreme Court previously clarified in Hassell v. Bird, even where a review has been determined to be false and defamatory, the business being reviewed cannot force the review site to remove it. But asking sometimes helps. In some cases, asking the reviewer to delete the defamatory content works; in other cases that effort proves futile. And in some cases, asking a reviewer to remove or delete information has the opposite result. This is known as the “Streisand Effect,” where an attempt to censor information has the unintended and opposite effect of causing the information to be disseminated more widely, usually facilitated by the internet.
A business may also succeed by asking the online review site to comply. Although a court order forcing the website to remove defamatory information is not an option, in many cases review sites (or other social media platforms) voluntarily comply. Sometimes the user-generated content posted on a website or platform violates the website or platform’s guidelines or policies. As an example, Google’s guidelines state that “Your content should reflect your genuine experience at the location and should not be posted just to manipulate a place’s ratings.”
The best policy is to have a policy. It sounds simple, but often times businesses are reactive rather than proactive. Businesses should seriously evaluate risk and make an informed decision about implementing formal policies and procedures, including those addressing crisis management.
Policies should not be static and are most effective when properly implemented and enforced, and when accompanied by trainings. Considering how quickly information travels over the internet and via social media, being prepared can be the difference between opening up and closing down.
DISCLAIMER: The information contained in this article does not constitute legal advice. No attorney-client relationship has been or will be formed by reading this article. For legal advice, contact a lawyer actively practicing in your jurisdiction.