Nowadays reviews about businesses on the Internet are a common occurrence. Almost every business is reviewed on Yelp, YouTube, Facebook, etc. Some reviews are positive and others can be negative. While positive reviews are appreciated, the negative ones can wreak havoc on a business and can affect one’s livelihood and/or reputation.
These negative reviews often force business owners to retaliate and sue the reviewer for defamation. But is such an action by a business warranted?
Elements of Defamation
Defamation requires a statement:
(1) that is false, but purported to be a fact;
(2) that is published or communicated to another person;
(3) that the author was at least negligent about; and
(4) that caused some harm to a person or entity who is the subject of the statement.
When Can an Online Review Be Defamatory?
While writing a review may be easy, the consequences can become serious for both the business and the reviewer.
If a review about a business tends to exaggerate or provide incorrect facts, and tends to harm the reputation of a person or business, the owner of the business may sue the reviewer for defamation.
A statement written in the form of a review on a social media site is considered as ‘published or communicated to another person’ unless the review is hidden and the author of the statement can prove that no one else viewed the statement. Otherwise, any statement published on any public forum (on the internet) is generally considered published or communicated to another since the statement is visible for anyone to view.
When Can an Online Review NOT Be Defamatory?
Truth is a defense to an allegation of defamation. If a reviewer has truthfully disclosed all facts and then formed an opinion based on those facts, such statements cannot be considered defamatory.
This is because courts are mindful that opinions are subjective and may differ from person to person. As long as the reader of the statements can derive an independent opinion from the disclosed facts, such statements will be considered as a subjective opinion of the author and cannot be considered defamatory.
Be Careful With the Phrase “It is My Opinion”
Finally, the reviewer cannot shield themselves from liability by hiding under the veil of the phrase “it is my opinion.”
In other words, making defamatory statements and then crouching them as an ‘opinion’ does not necessarily make those statements an opinion. It is very important that all facts are truthfully disclosed and that no facts were omitted — even those that do not support the writer’s position or opinion.
Rohit Chhabra is a San Francisco, California based internet defamation attorney who has represented clients at the Northern District of California and the Ninth Circuit Court of Appeals.