Yelp Reviews and Lawsuits

Given the recent judgment against a Yelp reviewer in Virginia, Yelpers must be on edge about writing negative reviews.  Is it possible that you can be sued for writing a negative review online?  Of course–it is possible to get sued for any number of things–and a lawsuit is a big expense so it would make sense to try to avoid one at all costs (no pun intended).

Negative reviews online that would lead to a lawsuit would fall under what is called defamation law.  There are two types of defamation–oral and written.  Oral defamation is called slander.  Written defamation is called libel.  Basically, libel is when you write something negative about someone and it hurts their reputation.  Under the law, there are certain elements that must be met in order for a written statement to be considered libel (which differ from state to state).  If someone does sue you and your case goes to court, the court will look at all these factors to see if your statement was libelous.  The factors include that the statement must be false; it must be about the plaintiff; it must be published; it must hurt the plaintiff’s reputation and it must have been the result of your negligence.  OK, immediately you are thinking, well, negative reviews may hurt someone’s reputation–however, your written statement must meet ALL of the criteria for the definition of defamation in your state to be considered libelous.  And the most important one is that the statement is FALSE.  So in other words, write about your true experience when reviewing a business.

In order to be libel, this false statement must be presented as if it were a fact, not just your opinion.  Now, this doesn’t mean that you can lie about someone as long as you cleverly write your review to sound like an opinion while stating facts.  Example:  It is my opinion that the owner of Business X has Mafia ties because he never has any customers but has a Mercedes parked out front.

Of course, the second element is easy because the statement in question is about the plaintiff or you wouldn’t be in court.  This element just requires that he or she be identified not generalized, and given that Yelp reviews are on the specific page of the business, the business itself would be identified.  Example:   Joe’s Cleaners in Any Town, USA, as opposed to a review for dry cleaners in general.

Also, the written statement must be published, and if it appears on Yelp, it is.  And the fact that you are posting a review means that you are consenting to the post being published.  (A word about statute of limitations for online defamation cases.  [Statute of limitations is the time that a plaintiff has to bring a suit against a particular defendant.  This is usually one to two years, depending on the state.  Keep in mind, the World Wide Web is worldwide and that brings in international law.  Most likely, the lawsuit would be brought where the business is located.]  The statute of limitations begins running the first time the defamatory statement is published online.  This would be the date you post your Yelp review.  Now, keep in mind, if you update your review, that may be considered a “renewal” of the statute of limitations, which means that the business would have more time to bring a suit against you.)

Now, the fourth factor is that the reputation of the business was hurt by this statement.  Did it lose customers?  What negative thing happened to the business as a result of your libelous statement?  If they lost customers, did they lose their business?  Their reputation in their community for delivering those type of services?

Finally, you must have acted negligently, or with some kind of fault.

Now, there is something in defamation law called defamation per se.  This means that the defamation is apparent from the statement itself.  What it means to you is that the plaintiff doesn’t have to prove harm to its reputation.  These statements include ones that affect a person’s business competence or accuse her of a crime.  Regarding Yelp reviews, #1 would probably come into play if you are attacking a business’s validity.  Example:  How can Mr. Smith be an accountant when he can’t even add?

In the Virginia case, the defendant had written that the plaintiff’s staff stole jewelry from her house.  If you think a crime has occurred, it is best to notify the police and handle it through those channels.  If in fact a crime is committed and the perpetrators are brought to justice, it will eventually become public knowledge and other consumers will be warned.  Also, if you have a dispute with a business and it’s one that can be settled in small claims or by filing a suit, do that.

Be truthful in your review and describe your experiences as it relates to the service of that particular business.  Give your opinions.  And businesses should keep in mind that a bad review can drum up business too.  For example, if you thought the risotto at Al Fresco was too salty, well, another reader may take that with a grain of salt (pun intended) and dine at Al Fresco just to see if you are right–or she may like her food with more salt.  When everyone gave Guy Fieri’s restaurant bad reviews, I wanted to dine there to see for myself.

Honestly, it is not in the best interest of a business to sue a customer for writing a (truthful) bad review.  It makes me not want to shop there, so if I feel that way, other consumers will likely feel that way, too.  But what do you do if you are sued for a libelous review?  First, get a lawyer who is knowledgeable in this particular area.  There are many lawyer referral services.  A bar association in your state is a good place to start.  (If you are a professional writer, you can buy libel insurance or join a writers’ organization that provides legal information.)

I take Yelp reviews with a grain of salt because I know that some of the reviews are fake–either created by the restaurant itself or by a disgruntled former employee or by a consumer who had an exceptionally bad (or good) experience.  Most reviews are written by average consumers who don’t have agendas, other than to alert others of good and bad experiences they’ve had.  I personally use Yelp, and sometimes I agree with other reviewers and sometimes I don’t.  Ultimately, I make up my own mind whether or not to go somewhere.  Business owners are insulting the intelligence of average consumers by assuming they are not of an independent enough mind to make their own determination of a situation.  Case in point–when I see a dispute, I realize there are two sides to every story.  I think Yelp reviews can put up a red flag, which is good, because we should be aware, as consumers.  However, I had read a number of terrible reviews of a moving company, and when I used them, they were great.  Sometimes I come to the conclusion that the consumers themselves are “the problem.”

I will share a personal story.  I made an appointment with a doctor without reading Yelp reviews.  After a month of waiting for the appointment, I got a phone call that the doctor had to reschedule and wouldn’t be able to see me for a few more weeks.  It was at this time that I read Yelp reviews and saw a lot of unhappy customers.  I didn’t schedule another appointment.  Was I swayed by Yelp?  Not really.  I didn’t like the way I had been treated and wasn’t going to make another appointment anyway.  Yelp just confirmed my suspicions.

So to reiterate, I don’t think it is in a company’s best interest to sue its customer for defamation for an online review.  In fact, I think businesses should change the way they see negative Yelp reviews.  They should look at these reviews as an opportunity to create a better relationship with their customers.

I have a recent example of a restaurant who did just that.  We ordered Asian food one night and it took almost two hours for the delivery to arrive.  The food wasn’t very good either.  Normally, this is a situation where I would write a review on Yelp about my negative experience.  However, the restaurant mailed me a handwritten note apologizing for the incident with a 20% off coupon.  With customer service like that, why would I write a negative review?

*This does not serve as legal advice.  For your particular situation, see an attorney.

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