Defamation. Reviews. The Internet – Oh My!

As the internet grew and things became more accessible, people were granted platforms to voice their opinions without restrictions. We came to rely on the reviews of others to help influence what we purchased, what we wear, what we eat, and where we stay.

Although this all provided a better way to reach our potential customers, it also allowed unsavory, inaccurate and misleading posts to slip through with possible reputation harm to our businesses. So, what should we do? Is there a legal remedy? Should we choose to partake in the same?

Except for extreme circumstances, it is usually in your best interest, both financially and in time, to focus on positive marketing to counter a bad review. Generally speaking, if a bad review, and incorrect review or even one that might, as defined below, meet the parameters of defamatory is posted, the best cause of action is to handle it from a marketing and public relations perspective.

Slander: Making defamatory statements by a transitory (non fixed) representation, usually an oral representation.

Libel: Making defamatory statements in a printed or fixed medium such as a magazine or newspaper. Both are lumped together under the umbrella term defamation.

Five elements must be proven in order to establish defamation and attempt to recover damages from the other party who published or spoke the “defamatory” words.

First, the information must be published. What does that mean? If the person writes the words in a private journal with no intent for it to be shared publicly then it is not “published.” But, putting it online, in a magazine, or even discussing in a publicly posted video or television interview would in fact reach the public it such a manner that it would be deemed published.

Second, is that individual or business being discussed must be identified by name. They should be so identifiable that the statement could only apply to that person. So “Glamping tents all have bed bugs” would not meet the standards but “Glamping Tents at C.Taylor Resorts have bed bugs” would properly identify the business.

Third, the defamatory remarks must have had a negative impact on the individual or business’s relationship. Telling a lie about whether a glamping business is open in May, when it doesn’t open until June is in fact false but would have little impact on the business. However, stating that the resort is unsafe and is burgled repeatedly is more likely to cause a loss in income for the business. Additionally, If the public becomes aware of a statement made about a business and they begin to , harass that business through threats, action of physical violence or through other means this would also be actionable. Often you must prove the statement was made with “actual malice” which means that the person who made the statement had ill intent.

Forth, the statement must be “demonstrably false.” The information must be able to be proven false. If the statement is merely an opinion or a half truth, it would be hard to prove any defamation. As we always say the best defense to a defamation lawsuit is the truth. If the opinion is a legitimate one, then it is protected as free speech in the United States. However, if the opinion is outrageous or designed solely to harm the reputation of the person the opinion is purportedly about, it can be defamation.

Fifth, they have to be the one who said (wrote) it! If they are merely parroting what they heard from someone else, “Sally told me C.Taylor resort had bed bugs,” the person republishing Sally’s statement would not be held liable for defamation.

You need evidence. Screenshots of posts, recordings of verbal statements. You need to prove that the person who said or wrote it, said and wrote it!

This is available in some states, New York and California to name two. This is defamation that is presumed to cause damages without the need for any proof by the defamed person. Defamation per se is typically asserted in instances where there are attacks on a person’s professional character, allegations that an unmarried person is unchaste, allegations that a person is infected with an STD, or allegations that the person has committed a crime of moral “turpitude.” In short, it needs to be super egregious for it to rise to defamation per se. The exact requirements vary by state so you would have to consult a local attorney to confirm the same.

The person behind the business being defamed may suffer mental anguish as a result of both the defamation itself and its other consequences in their life. The person who committed the defamation may be required to pay damages. If the plaintiff succeeds in their defamation case, the defendant is often ordered to monetarily compensate the affected party to remedy the damage that was inflicted by the defamation. In the case of a business defamation damages are usually tied to the provable loss of income as tied to the defamation. Having an easily identifiable loss is the best number to anchor too when discussing a damages amount.

Generally, No! Although I never like to turn away work – lawsuits are always expensive and very seldom result in an outcome that would leave you satisfied with the result. You will spend a lot of money and because of the variables (judges, defendants, courts) there is no guarantee that you will reach a satisfying result.

(1) That it was the truth; (2) that the statement was privileged; (3) that it was merely an opinion and not asserted as a fact; (4) that it was a fair comment – such as discussing the allegations surrounding an already publicized scandal; and (5) that the defamed business actually consented to the dissemination of the defamatory statement.

Consult a reputation management expert. I would also caution against posting something yourself that might be considered defamatory. There are many lawsuits where the originally defamed business or person loses their ability to recover because they posted their own defamatory statement in retaliation. Never stoop to their level. It is often preferred to fight bad negative and even false comments with positive ones of people who enjoyed your business. If it seems daunting to unbury yourself from the same, you will need a way to get defamatory content off the internet or, at the very least, buried under so much positive news about you that it makes the negative stuff hard to find. To do that, you may need the assistance of a reputation management expert.

There are a number of services available online that specialize in creating new content about you, making take down requests to sites posting negative content, and taking other steps to control your online reputation, this is often cheaper than filing a defamation lawsuit.

Christine Taylor is a Partner at The Towne Law Firm, P.C. (headquartered in Albany, NY) who focuses her practice in the areas of Hospitality, Business, Labor and Employment, Real Estate Law, Estate Planning, and Litigation. Ms. Taylor grew up within the outdoor hospitality industry as her parents have owned three campgrounds, her experience within the industry gives her insight from both the legal and camping perspectives. Ms. Taylor has spoken at various outdoor hospitality conferences including KOA, CONY, NCA, ARVC, PCOA, as well as the Mid-Atlantic conference. She additionally authors a column that appears in Woodall’s Campground Management.