All publicity is good publicity — or so the saying goes. Nevertheless, it’s safe to assume that businesses saddled with false and misleading reviews on public forum websites, such as Google, Yelp, Angie’s List and other rating websites, would strongly disagree.
People leave reviews on such sites for many reasons: to reward good service, to offer legitimate advice, to warn of a bad experience and for other reasons. While bad reviews may be rightly earned, what happens when that is not the case? In other words, what can a business owner do when false and misleading reviews harm business?
In Massachusetts, a business may have a claim for online business defamation. An online business defamation claim contains five elements. In order to prevail on such a claim, a business must prove, “(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.” Noonan v. Staples, 556 F.3d 20 (1st Cir. 2009). Further, a statement is considered defamatory when it, “may reasonably be read as discrediting [the business] in the minds of any considerable and respectable class of the community.” Clay Corp. v. Colter, 2012 Mass. Super. LEXIS 357 (Mass. Super. Ct. 2012).
Who is responsible to the business for a defamatory review? While it is tempting to want to pursue the public forum website itself, federal law, specifically, Section 230 of the Communications Decency Act (“Section 230”) limits whom businesses can hold legally responsible for defamatory postings. Courts have consistently interpreted Section 230 as providing close to blanket immunity to public forum websites where the content in question is generated by a third party. As a practical matter, claims against the Googles, Yelps and Facebooks of the world present significant additional challenges and businesses are better served by focusing on claims against the actual author of the posted defamatory comments, rather than the forum on which the comments were published.
Should you find your business interests harmed by false or misleading statements on the internet, you’d be well-advised to consult an attorney concerning the potential rights and remedies available to you.
