Free Speech & Defamation in Local Reviews

A new sushi place opened in my neighborhood recently. I was pretty excited; we’ve had only a mediocre Japanese place that mysteriously remains in business despite its low quality. I’ve often thought it must a front for criminal activity, how else could it survive?

Initially the new restaurant got very favorable reviews on Yelp but then a second wave of unfavorable reviews appeared and dragged down its overall rating from almost five stars to three. I was surprised but when I looked more closely the critics seemed to be complaining about two main things: it took too long to get a table and the fish wasn’t as good as expected — likely based on the earlier reviews.

In other words, positive reviews had helped create the crowds, which the second wave of reviewers complained about. It also created very high expectations that the second group came to dinner with. There’s something strange and even vaguely unfair about that; the early success fueled wait times and expectations that were disappointed. (I haven’t yet been there so I can’t comment on the quality of the experience or the food.)

I admit I felt frustration and event a tinge of anger. This second group was threatening to kill the place before it really had a chance to get going or before I’d had a chance to get there myself. I empathized with the business owner and was able to feel in a vicarious sort of way the resentment some SMBs have of amateur reviewers.

While there’s often valuable feedback in reviews, most people writing them have little or no idea what’s involved in running a small business. In addition some of the most frequent Yelpers, for example, are often writing for one another (sometimes with a heavy helping of snark) rather than objectively reviewing the restaurant or other local business in question. There’s often only limited thought given to the potential impact on the business itself.

I am very glad that Yelp had established its Small Business Advisory Council. I think this will only be good for the site in the long run. It also addresses and redresses the perception of imbalance and unfairness that is partly responsible for fueling the litigation Yelp is now defending against.

Of course, one could argue that a well-run business will ultimately garner more favorable reviews than negative and everything will take care of itself. And there’s truth in that argument.

Some businesses that believe they’ve been wronged by negative reviews (mostly unwisely) take legal action against online critics. This should only be done where it’s entirely justified and only in the most extreme cases.

The New York Times has a nice article on this subject, When Online Gripes Are Met With a Lawsuit. It frames the issue in the larger context of defamation vs. free speech and Slapp, “strategic lawsuit against public participation.” The article’s hook is a defamation suit brought by a towing company against a guy who set up a Facebook page against the company after his car was incorrectly towed:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the towing company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Is this a business that has been wronged or is it a company using strong-arm tactics to silence a critic. In this case it’s almost certainly the latter. The article goes on to discuss various anti-Slapp laws and pending federal legislation that would make it harder for litigation to be brought against consumers simply voicing their opinions and experiences online.

One of the more interesting discussions in the article is about a tactic that some doctors are using to control negative reviews about them online:

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

Presumably then the doctor can simply contact the directory — InsiderPages for example — and say it owns the critical review in question and ask for its removal. I’m not so sure, however, that these agreements are legal. Patients probably don’t understand that they’re signing away their right to criticize the doctor. It probably also qualifies as an illegal prior restraint on free speech. And then there are the review sites’ fine print, which often assert they own the review copyright as well. So there’s a tangle of legal issues that have yet to be sorted out by a court.

Given how influential reviews can be SMBs need some way to respond. Yelp and other review sites do provide mechanisms, to comment upon and clarify the context of a review and/or to contact the unhappy individual and try to make good on the problem or bad experience. But on balance the system as it currently stands is far from perfect — and most SMBs simply have to do their best and hope that people are basically fair and honest.

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4 Responses to “Free Speech & Defamation in Local Reviews”

  1. David Mihm Says:

    As Mike Blumenthal says, “know your customers and treat them ‘righter,’ and you’ll be just fine.” It’s becoming absolutely essential to provide good service at a fair price to manage your online reputation.

    I can’t possibly see that a legitimate, fact-based review would either

    a) hold up as slander in court
    b) be under the copyright of anyone but the site it was posted on, or the reviewer herself

    The case of your local sushi joint is interesting & speaks to the issue of Yelpers from outside a neighborhood reviewing restaurants they have no experience with. But hopefully semantic indexing will improve, and ‘wait time’ will eventually show up as a positive ranking factor :)

  2. Greg Sterling Says:

    Re the legal issues . . . you’re right. Facts and opinion won’t be actionable. In terms of insiders and outsiders . . . this is where friends and your network come into play to filter reviews.

  3. Tom Wilkowske Says:

    It takes more than rant to write a good restaurant review, writes this former restaurant critic. Subject matter expertise and == sheesh — direct experience with the restaurant should be essentials. That, and context. Is it a fail if it’s not better than the best sushi joint you’ve ever been to? Or another welcome option to the local scene?

  4. Unpopular Towing Company Pulls a Chris Comins: Yet Another Bogus SLAPP Suit Backfires « Comins v. VanVoorhis Says:

    [...] Daily Kos, ITBusinessEdge, E-Commerce Journal, Fresno Beehive, The Blog of Legal Times, and Screenwerk–to name just a [...]

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