Attorneys

John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

    Email Subscription to Our Blog

Business Rebels vs. Consumer-Complaint Death Stars

Monday, July 23rd, 2012

It feels like 1977 all over again.

I was 14 years old and a sci-fi geek (part of that hasn’t changed). Star Wars hit the theaters. I saw it with friends seven times within a few weeks, living off buttered popcorn. Thank God for Clearasil.

The climactic scene is where the rebels – the good guys – are desperately trying to find and exploit a vulnerability of the Death Star before it destroys their base.

They find it – a tucked-away exhaust port leading to the Death Star’s reactor. During the rebel’s last-gasp in a furious (no) air battle, Luke Skywalker fires the inspired shot that explodes the Death Star just in time.

Many businesses feel like they are facing two online Death Star’s and are probing furiously for the legal vulnerability to take them out before they themselves get destroyed.

Welcome to the world of online consumer complaint websites. The current biggies – today’s Death Stars – are Ripoff Report and Pissed Consumer.

They share a fascinating business model driven by search engine rankings, principally Google.

Each site allows anyone to post complaints about businesses. While each site has terms of use that prohibit lying, in practice they allow anyone to post anonymously just about anything about any company. Neither site screens complaints for honesty.

These sites then engage in heavy search-engine optimization. Their goal is to get their sites listed as high as possible in Google searches for the company reviewed.

For example, if you were searching on Google for information about SlickSkin swimsuits (I made that up), they would like the gripe page on their sites dedicated to complaints about SlickSkin to be near the top of search results.

Why? So they can get paid by the criticized. These sites in turn seek to sell “reputation management” opportunities to the companies that get negative reviews.

For example, Ripoff Report tries to sell to you the ability to have an arbitration firm determine if the complaint against you is wrong and, if it is, to get that finding posted next to the complaint. (It’s policy is to never take complaints down.)

It also tries to sell to you membership in a “corporate advocacy program,” which would enable you to rebut all meritless claims and generally clean up your image on the site ¬¬- all for a fee it does not publicly disclose.

So, at a high level, they solicit bad publicity about your company without caring about its truth, pump it up in Google, and they offer to sell you ways to tame it down.

It has been reported that they also use third-party advertising services, such as Google AdSense, to automatically display ads for competing products or services alongside the complaints about your products. For example, in theory, advertisements for Speedo could automatically appear in the complaint forum about SlickSkin.

I have not been able to get such advertising to display on these sites, so perhaps that ended.

Several criticized companies have tried suing Ripoff Report and Pissed Consumer to get what they claim are false complaints taken down. But, these sites haven’t lost a case yet. The companies can’t seem to find the vulnerable exhaust shaft.

Perhaps there isn’t one. Some lawsuits claim these sites are engaging in trademark infringement in the way the sites are using their company names.

These claims are failing because, to win a trademark infringement case, you have to prove that consumers are likely to be confused into thinking that the accused is associated with the trademark owner or is the trademark owner. Yet, no sentient person would think that, for example, Verizon is allied with a Ripoff Report page criticizing it.

The other attack is to throw a book of state-law claims at these sites – claims like defamation. Yet, a federal law called the Communications Decency Act so far has fully insulated these sites from any such state-law claims. As long as these sites just allow others to post nasty comments and the sites don’t write them themselves, they’re legally covered, so far at least.

So, if you’ve been stung unfairly by such sites, what can you do?

You could spend tens (perhaps hundreds) of thousands of dollars to have lawyers try to find and exploit the not-yet-found legal vulnerability of these sites. Good luck!

If the post is by a former employee and contains your company’s trade secrets, that might be an avenue for attack. But most posts are just blistering rants.

You could pay the site for the privilege of rebutting and cleaning up the false charges. If you must clean them up, that’s probably the cheapest path, but how would you feel about paying off the source of your pain?

You could post free rebuttals on the sites. But that might elevate the complaints in search engine results and, regardless, your rebuttal will get subordinated under the complaints.

You could try to sue the anonymous gripe poster and, when you win that case, take the court order to Google (and perhaps other search engines) and ask them to de-index the complaint from its search engine. The complaint would remain on the Internet but the complying search engine wouldn’t list it.

I’ve read a report claiming that Google will comply but I can’t confirm that from experience. Regardless, that takes litigation, so you’ll spend at least five figures trying it.

You could hire an online reputation management firm to try to bury the bad stuff in search engine results under lots of glowing stuff. I have not used such services but get the impression that they are expensive and that you need to vet them carefully before hiring.

Or you could just ignore the gripes and hope they fade away in search-engine ranking.

Except in extreme cases, the do-nothing approach probably is best. Most folks know to not blindly trust online consumer reviews, such as on TripAdvisor or Amazon. They realize some reviews are made for ulterior motives or by cranks. Indeed, consistently perfect reviews look suspicious.

Perhaps search engines such as Google will eventually push these gold-digging gripe sites to search-ranking obscurity to protect the perceived helpfulness of their top search results. On the other hand, a cynic would say that such search engines would rather sell lots of advertising to them.

Righteous anger may inspire you to rush to battle against these online Death Stars. If you are so moved, just remember that, in the movie, most of the rebel flyers got killed in the effort. Consult the legal force before you open your wallet for the attack.

by John B. Farmer
Published in the Richmond Times-Dispatch
© 2012 Leading-Edge Law Group, PLC. All rights reserved.