Can you be sued for leaving a negative online review?
Can you be sued for leaving 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 it were only that easy…
Prior to 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, in court actions, when a party proves that a wrong occurred, 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 simply posted a generalized negative statement about a company on an online review site (for example: the staff is rude), that company must simply prove that the statement is defamatory. Once proven, damages are presumed.
Opinions haven’t changed
People have always had and shared opinons. Prior to the age of online reviews, they shared their opinions with family and friends. However, now in the age of Facebook and online reviews, opinions are shared with the planet instead of just neighbours.
With our opinions reaching a wider audience, lawsuits have followed. I’ve written before about the dangers of writing strong opinions of others on Facebook.
Is this fair?
Defamation laws and principles arose out of the necessity to protect reputations against falsehoods. In fact, today, as it has always been, truth is an absolute defence to a charge of defamation. So, 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, then 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 has a focus 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 as a tool 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…
In Manitoba, a motorcycle gang recently used online reviews after the owners of a local restaurant refused to serve their members. Through its network, members posted a large number of 1 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.
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.
According to the 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 as a condition of buying a product or using a service, customers agreed to refrain from leaving negative reviews. By adding these clauses to their terms, businesses would then sue customers over negative reviews under contract rather than defamation.
Unfortunately, while this prevents businesses from imposing a restriction on negative reviews, it doesn’t address the proper balance between the rights of business and consumers. 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. In the end, as long as opinions are being shared on such a public platform, defamation suits will continue to occur.
Philippe Richer is President of TLR Law Group. TLR has been located in the St. Boniface neighbourhood, in Winnipeg, since 1996. The office serves the middle class and small business within the province. With a focus on estates, wills, real estate, and corporate law, he leads his team in providing accessible legal services. Philippe also authored the business law course for the Knowledge Bureau and instructed the français juridique class at the faculty of Law at the University of Manitoba.