Can you be sued for leaving a negative online review?

Can You Be Sued For A Negative Online Review?

The short answer is yes. A business can sue you under defamation laws. This CBC article covers a story where a renovation contractor sued a disgruntled customer for $3 million after that customer left a negative review on a popular review site in Toronto.

It’s a complicated situation. Honest consumers who experience bad service should be able to have their say. This is the classic capitalistic concept. If a business offers a good product with good service, that business should benefit and grow. Conversely, a business that offers poor products and poor service should suffer.

If the way the world worked were only that easy.

Defamation laws

Before the days of the internet, word of mouth (and advertising) built or damaged a company’s reputation. Now, in addition to those, we have online reviews. Defamation laws have not changed significantly since the advent of the internet. While these laws don’t outright replace the torts of libel and slander, most lawsuits are filed with reference to the laws. (Torts exist at common law. Defamation laws were brought in to modernize the old common law torts of libel and slander – the term defamation subsumes both concepts).

Under Manitoba’s Defamation Act, (as in all provincial laws), damages are presumed if defamation is proved. This means that a party who proves that a statement is defamatory does not have to prove how much it suffered as a consequence.

Normally, when a party proves that a wrong occurred in court actions, it must then show how much it suffered (normally by proving how much money it lost). This is not the case in defamation. So If a person posted a generalized negative statement about a company on an online review site (for example claiming the staff is rude), that company must prove the statement is defamatory. Once proven, damages are presumed.

Opinions Haven’t Changed

People have always had and shared opinions. Before the age of online reviews, they shared their views with family and friends. However, now in the age of Facebook and online reviews, opinions are shared with the planet instead of just your neighbours.

With our opinions reaching a wider audience, lawsuits have followed. I’ve written before about the dangers of writing strong opinions about others on Facebook.

Is This Fair?

Defamation laws and principles arose out of the necessity to protect reputations against falsehoods. Today, as it has always been, truth is an absolute defence to a charge of defamation. If a person posts on an online review site that a contractor did not finish a job but received the whole payment and that statement is true, that person could rely on the defence of truth if the contractor filed a lawsuit.

In the article above, the customers posted the following statement: “[contractor] has unprofessional staff.” While that may have seemed true to the customer, it is a generalized statement. How does the customer prove the staff are unprofessional? This is where people usually get into trouble. Emotions may run high, and a consumer may be tempted to offer sweeping generalizations instead of specific responses. There is a big difference between “the staff is rude” and “the representative refused to answer my calls.” So one must be careful in making a judgement about what is true.

The article in question focuses on individuals who were sued and the owner of the review website. So it is easy to feel for them and see the contractor as the bully. But what if the customers were belligerent and refused to pay their bills and used the online review to bully the business? It’s impossible to say if that occurred from the information provided. However, in the end, the customers paid $100,000 for unpaid labour and material.

Manitoba example

In Manitoba, a motorcycle gang recently used online reviews after a local restaurant owner refused to serve their members. Through its network, members posted a large number of one-star reviews. While this is an extreme example of bad consumer behaviour, one can see how easily individuals can abuse the system. Untrue and malicious reviews can ruin a small business.

Solutions?

Once again, we need to find a way to balance the rights of opposing parties. In this case, those of the business community and the rights of individuals to free speech. Business owners should be protected from untrue statements, but consumers should feel free to voice their opinions.

U.S.

According to a news article, the U.S. passed the Consumer Review Fairness Act to address the issue. The act in question arose because businesses in the U.S. were adding gag orders to their terms of service. Essentially, terms of service established that customers agreed to refrain from leaving negative reviews as a condition of buying a product or using a service. By adding these clauses to their terms, businesses would sue customers over negative reviews under contract rather than defamation.

Unfortunately, while this prevents businesses from restricting negative reviews, it doesn’t address the proper balance between business and consumers’ rights. Because of these competing interests, the middle ground will always be a little grey. I don’t believe we can find a magic bullet to solve this problem. We could beef up some of the provisions to protect accurate yet poorly worded consumer opinions while adopting better protection for businesses from malicious attacks. That could narrow the grey area. A long as opinions are being shared on public platforms, defamation lawsuits will continue to occur.

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Disclaimer – Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).

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