Online reviews play an increasingly important role in the modern bar and restaurant scene. While truthful and appropriate reviews can offer real benefits to businesses, phony or fraudulent reviews can quickly torpedo a thriving enterprise, regardless of their falsity.
The danger of bogus reviews is obvious: readers of an online review will often have no idea whether or not the reviewer is telling the truth, but they may avoid patronizing the establishment just the same, leading to staggering losses. This risk is compounded by the fact that many people think of the Internet as a place they can go to unleash obnoxious tirades without consequences.
But when reviewers cross the line into spreading false and damaging claims, owners of hospitality businesses have a right to defend themselves and their livelihoods, and there are a variety of legal options available to combat the scourge of phony Internet reviews.
The Law of Defamation on the Internet
Although laws vary from state to state, as a general proposition, a person may be legally held liable for defamation when he or she posts a review that contains assertions of fact (as opposed to opinion), and when the assertions of fact are demonstrably false and damaging to the reviewed business.
What does this mean in practice? Customers are entitled to post reviews that are statements of opinion, such as “the sauce was too spicy” or “the décor was unattractive.” While you may disagree with a customer’s opinion, those disagreements are not proper bases for legal action. In addition, customers can provide reviews that contain accurate statements of facts, such as “the waiter spilled wine on me” (if that is indeed true). These types of claims are generally permissible because statements of opinion or accurate facts constitute protected free speech under the First Amendment.
However, if a review contains a false assertion of fact, the reviewer may be liable for defamation. For example, statements like “I was charged for items I did not order,” or “there was an insect in my food,” if untrue, may form the basis of a defamation claim.
Four Steps To Deal With A Bogus Review
From a legal perspective, the best way to deal with a bogus review can be broken down into 4 steps.
First, determine whether the review contains any statements of fact. To do this, parse the language carefully and try to determine exactly what the reviewer was communicating. Often times, statements may initially appear to be factual but, after a deeper look, may constitute opinion (or vice versa). It is important to keep in mind that in most courts, a reviewer cannot convert a statement of fact into protected “opinion” merely by using certain buzzwords (such as adding the phrase “in my opinion” before a clear statement of fact).
Second, if the review contains only statements of opinion, consider alternative methods for addressing it, such as politely responding to the review on the relevant platform and explaining why you don’t believe it is correct, or pursuing any “takedown” procedures provided by the platform. You should take any possible steps to increase the number of good reviews, which can dilute the effect of one negative comment.
Third, if you believe that the review contains false statements of fact (i.e., defamation), ask your legal counsel about the relevant laws in your jurisdiction and whether you have a viable legal claim. When determining whether to pursue legal action, keep in mind that:
- The fact that a review may have been posted anonymously does not mean that you cannot bring a claim. Under appropriate circumstances, courts will order Internet service providers to disclose the identity of a wrongdoer so that he or she may be taken to court.
- To win a case, you will need to prove that the statements in question are false, and there are many different ways of doing so. For example, an incident may be captured on film, or members of the staff may be able to provide testimony proving the falsity of a bogus claim.
Fourth, consider whether the harm is significant enough to warrant legal action. The damage to a restaurant or bar from a widespread defamatory review can be severe, leading to the loss of multiple customers and revenues of many thousands of dollars (or more), and long-lasting reputational harm. Therefore, a legitimate defamation claim can entitle a business to collect damages that may be equally substantial. On the other hand, in cases of very minor misstatements, it may not be worth investing the time and resources required to pursue legal action, even if you have a valid claim.
Given the relatively high number of customer interactions, the presence of alcohol, the ease of writing an Internet review, and the emergence of a culture in which many people believe they are “experts,” bars and restaurants face a heightened risk for online defamation. But with vigilance and careful analysis, proprietors can protect themselves from having a defamatory review destroy their hard-won reputations.