By its nature, business law is always playing catch-up to business reality. Few areas of law reflect the gap between every day events and court opinions as the area of social media. Social media gives everyone the power of the Bully Pulpit, to use President Theodore Roosevelt’s phrase about the presidency.
For businesses, social media can be a scary place because any disgruntled customer, current or former employee, or competitor can post reviews or comments that can damage the company’s brand name. Businesses have to decide how best to respond to this negative publicity. The choices can vary from ignoring the comment, replying to the negative comment on the same social media platform or issuing a press release or formal statement. If the negative posting occurs on the business’s own social media page, such as a Facebook page, then the business may be able to delete prior comments and block future ones. In addition, a business may invite a bigger outcry in deleting a negative post than addressing the substance of the post and let the public decide.
Businesses should be reminded that social media is not confined by Newton’s Third Law of Motion that every action has an equal and opposition reaction. Rather, negative social media reviews can invite unequal and overreaction. Thus, they are more akin to the definition of “revolution” provided by Tommy Lee Jones’s character in Under Seige that a “revolution gets its name by always coming back around in your face.” A negative review is oftentimes omnipresent on the internet, permanently staining the reviewed business.
The difficulty of choosing how best to respond is compounded by the fact that the social media world demands a business to respond almost immediately. Delaying too long can eviscerate even the best response. Further, if legal action results from the original post, each response will invite legal scrutiny.
A negative post can invite a business to take legal action against the person who posted the review. Our firm has been involved in several matters relating to negative reviews. One lesson from our aggregate experience, however, is that there is no one solution that appropriately addresses all negative reviews. A business facing a major social media problem should strongly consider obtaining legal advice to determine how best to respond.
Determining the identity of a reviewer, however, can sometimes be problematic because the reviewer is anonymous or shielded by a username. Some review sites encourage such anonymity because they want reviewers to feel comfortable in posting reviews. This collision between the interests of the reviewers and the businesses being reviewed was played out in a recent Virginia Court of Appeals case regarding Yelp.com. The court ordered Yelp to provide IP addresses of anonymous reviewers and the decision has prompted much discussion in the legal arena.
The case arose when Hadeed Carpet Cleaning, Inc. (“Hadeed”) sued Yelp claiming that some negative reviewers of Hadeed were never actually customers of Hadeed and the reviews were thus illegal defamatory statements. Hadeed sent a subpoena to Yelp requesting the identity of specific reviewers.
When an online post is made, Yelp records the Internet Protocol (“IP”) address from which each posting is made. Users are usually allowed to post reviews anonymously, but in this case Yelp was ordered to provide IP addresses associated with negative reviews.
The court noted that while anonymous speech is protected by the First Amendment (Op. at 5, citing Buckley v. American Constitutional Law Found., 525 U.S. 182, 197-99 (1999)), defamatory speech is not afforded Constitutional protection. Op. at 7 (quoting Chaves v. Johnson, 230 Va. 112, 121-22 (1985)).
Virginia Code § 8.01-407.1 details the test in Virginia for uncovering the identity of an anonymous internet communicator. As part of this test, the constitutional right to speak anonymously is balanced against Hadeed’s right to protect its reputation. Op. at 19. The Virginia Court of Appeals declined to hold the Virginia Code section unconstitutional.
Despite Yelp’s policy that users don’t have to reveal their identities before posting online reviews, the Court of Appeals ordered Yelp to provide the identity of the reviewers. The social media site’s policy did not withstand a court order.
Although user identities can be exposed, content perhaps remains protected under the Stored Communications Act. Facebook, for example, relies on that Act in its policy for civil subpoenas (click here) which states that Facebook will provide basic subscriber information, but not content such as messages, Timeline posts, or photos because “the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity . . . .”
The Virginia Code highlighted in the Hadeed case only deals with the information that relates to the identity of posters. Content of communications is a different question. But, the identity of the poster is often the most sought after information. The content of posts themselves is usually public and the cause of defamation lawsuits in the first place. It’s the identity of the reviewer that is usually important. This is because it is not illegal for the reviewer to give an opinion, so long as it is based on facts – meaning they had to have been an actual customer of the business. If they were never a customer and they give a negative review, their review can be held to be illegal defamation.
Defamation lawsuits over online negative reviews are increasing. This week in Fairfax County, a trial is being held in the case of Dietz Development, LLC, et al. v. Jane Perez where the plaintiffs cite loss of work opportunities caused by a negative review (click here to read the Complaint). Plaintiffs are asking for $750,000 in connection with the allegedly false negative review which they claim greatly damaged the business’s reputation.
The takeaway from this recent activity is that businesses should develop an action plan for how they might respond to various potential negative social media comments. And, in serious situations, they should consider seeking legal advice about their response options.