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John B.
Farmer

 

Lawrence E. Laubscher, Jr.

 

Ian D. Titley

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You Can Get Unmasked for What You Write on Yelp

Tuesday, January 21st, 2014

Posted on January 27, 2014.

Be careful what you write on Yelp. If you write something negative and false, you could get unmasked by a court and successfully sued for defamation.

Yelp is an online business-rating site. People use it to gauge customer opinion on all sorts of businesses, such as restaurants.

Recently, a Virginia appellate court held that a Northern Virginia rug-cleaning company could force Yelp to divulge its information about the identity of several people who posted bad things about the company.

You can post on Yelp under a made-up screen name. When you register to post on Yelp, you give certain potentially identifying information, such as your email address, which has to be a working email address.

Yelp won’t just give that contact information to any business that asks for it. But, as this case illustrates, a court can force Yelp to divulge it.

You have a general First Amendment right to speak anonymously, including online. But someone who is defamed by what you write can force a service such as Yelp to reveal what it knows about your identity.

In fact, Virginia has a statute that addresses when the identity of someone who spoke anonymously can be unmasked by a lawsuit. In a nutshell, in this kind of case, the most important thing the offended party has to show is that it has a legitimate basis for claiming it was defamed by the negative posting.

So what constitutes defamation? Generally speaking, defamation is a false statement about a person or business, made to others, orally or in writing, that is false and harmful.

Negative opinions are not defamation, but false statements of fact can be. And even if you frame your negative statement as an opinion, if you base it upon false facts, you can be liable for defamation.

In the Yelp case concerning the rug-cleaning company, that company claimed the reviews were false because the complaints, which purportedly were from customers, did not match with its customer records. It claimed the reviews were fakes.

That persuaded both the trial and appellate court that the posters should be unmasked. The appellate court held that falsely masquerading online as a dissatisfied customer when you were not a customer is a false fact even if the expressed dissatisfaction is stated as an opinion. Yet, in the case, the negative reviews were pretty factual, such as a claim that a price charged was double a quoted price.

Certainly some online reviews are fake. Sometimes unscrupulous businesses post fake negative reviews about competitors. Sometimes people post fake negative reviews about businesses for all sorts of reasons, such as disliking the politics of the business owner.

Based on this case, here are tips for consumers posting on Yelp:

• Don’t take your anonymity for granted.

• Don’t post fake reviews.

• Pause and cool off before posting a negative review.

• Frame your postings as opinions, not facts, unless you are able and willing to back up your factual claims. You might say, “I don’t think the food was sufficiently fresh” and have it protected as an opinion. But if you write “the bread had mold on it,” be ready to defend that statement.

• Even if you frame your statements as opinions, any negative facts you misstate or imply in support of that opinion can be the basis for a defamation claim.

• When you post a negative review based upon your own customer experience, the business might claim it’s a fake, so only make negative statements are willing to stand by and document.

And here are tips for businesses that suffer negative reviews:

• File defamation suits to unmask posters only as a last resort. Litigation is expensive. You probably will not recover your attorneys’ fees. Litigation might draw more attention to the negative comments than if you didn’t sue.

• Anything you say in a lawyer letter or a court filing could be used to ridicule you as being a bully. Explain why you must take the action you are taking in any letter or suit. Think about what an ordinary audience might think of what you do and say.

• Post responses online offering to fix whatever is wrong and seek the opportunity to do so. Be more mature and reasonable than the complainer. Others are watching.

• Look in the mirror. Is there something that needs fixing? If you provide an outstanding customer experience, it probably will shine through online.

Written on January 21, 2014
by John B. Farmer
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