Brand owners today face a constant challenge in monitoring their company’s online reputation and, where appropriate, responding to user comments and reviews. Usually, negative online feedback can be addressed through standard customer relations. Sometimes, though, a user review goes so far beyond the pale that the brand owner might consider suing the user, as well as the website where the comments are posted, for defamation.
In the past few months, several courts have considered how U.S. state and federal laws apply to these kinds of claims. The resulting decisions illustrate some of the barriers that companies face when suing over negative online reviews.
In the U.S., to succeed on a claim for defamation, one must show that he or she was injured by a false statement of fact. Defamation law covers “provable” facts only, so opinions are not actionable unless that opinion clearly implies a statement of fact. Truth is an absolute defense; if the statement can be proven true, then the defamation claim fails.
Not all user reviews can be neatly categorized as opinion or fact. For example, in a recent California case, a landlord sued a disgruntled tenant for defamation over a Yelp review that included statements of both kinds. On one hand, the tenant’s claim that the landlord was a “sociopathic narcissist” who “celebrates making the lives of tenants hell” was found to be opinion and therefore protected. Other aspects of the review, however, were factual in nature and so potentially defamatory, such as the tenant’s claims that the landlord had sought to evict six tenants and had likely contributed to the deaths of three others.
Another important consideration is that, under the First Amendment, public figures (which can include corporations as well as politicians, celebrities, and other famous people) must meet a higher standard of proof in order to succeed on a defamation claim. Such figures must show that the statement was made with “actual malice”—that is, that the speaker either knew the statement was false or acted with reckless disregard as to its truth or falsity.
Because defamation claims necessarily implicate defendants’ free speech rights, legislatures have put into place statutory protections that can present further obstacles to these claims. Two of the most notable are state “anti-SLAPP” statutes and Section 230 of the federal Communications Decency Act.
A strategic lawsuit against public participation (or “SLAPP”) is a meritless lawsuit that targets someone for speaking publicly on an issue of public interest. Such lawsuits, even if ultimately unlikely to succeed in court, can chill speech by forcing speakers to choose between either defending themselves in court (often at great expense) or else withdrawing the contested statements.
In response, twenty-eight states and the District of Columbia have passed anti-SLAPP statutes to protect defendants in qualifying cases by providing them with special remedies, such as recovery of attorneys’ fees. Federal anti-SLAPP legislation, proposed last year in the Senate, would offer similar protections for statements by the news media.
Courts in several cases have found that online reviews can qualify as speech on issues of “public interest” or “public concern” and are therefore entitled to anti-SLAPP protection. In such cases, the user typically brings an early anti-SLAPP motion, requiring the brand owner to prove that its claims are likely to succeed. If the brand owner fails to do so, the case is dismissed, and the brand owner is ordered to pay the user’s attorneys’ fees and costs.
Section 230 of the Communications Decency Act
Specifically, Section 230 of the CDA says that the provider of an “interactive computer service” is not considered the “publisher” or “speaker” of “any information provided by another information content provider.” This means that a website usually will not be held liable for defamation, among other claims, as a result of its hosting and publishing user-generated content such as user reviews.
Recent decisions demonstrate how Section 230 works in practice. In one case, a New York dentist unsuccessfully sued Yelp for defamation based on two user reviews; the court held that “Yelp is entitled to immunity because this action is based on reviews written by other content providers—Yelp users—and not based on any content that Yelp itself created or developed.” In another case, also involving Yelp, an Oregon court found that the website could not be held liable for a review by user “Tabitha J.”—and also that Tabitha J.’s review was itself protected under Oregon’s anti-SLAPP statute.
As these decisions and others show, the barriers to succeeding on a defamation claim against a user review are high. First, to qualify as defamatory, the user’s comment must be a statement of fact (not opinion) and must be demonstrably false; the standard is even higher if the brand owner is a public figure. Further, if the brand owner’s lawsuit lacks merit, it may be subject to a state’s anti-SLAPP statute, resulting in early dismissal and an award of attorneys’ fees to the user. And websites that host user reviews can find safe harbor in the provisions of Section 230 of the CDA, making defamation claims against sites like Yelp especially unlikely to succeed. Brand owners should carefully consider these barriers before bringing suit.