How libel chill is quashing negative online reviews

The aggressive action taken bysome businessesagainst those who post negative reviews online about their product or service is having a chilling effect on some reviewers who fear being sued, observers say.

"It's a tremendous issue. We're running into that all over. It's cheap to threaten and expensive to defend," said Paul Alan Levy, a lawyer who specializes in free speech issues related to the internet for the Washington, D.C.- based Public Citizen Litigation Group.

"So yes, many people become very quiet when they're faced with the realistic possibility that they're going to have to defend against a libel claim even if what they said istrue. Because it's all very well to defend, but if it costs $10,000 to defend a true comment, well you're out $10,000. How much is it worth?"

"Certainly businesses are counting on the fear reaction," Levy said.

• GO PUBLIC:Negative online reviews led to threats of legal action from targeted businesses
• How trustworthy are online reviews?
• How do you fight back against online defamation?

Some companies in the U.S. have taken it a step further and are including non-disparagement clauses into contracts, which preventcustomers fromwritinganything negative about the company. Unlike a libel claim, which is only actionable over a falsestatementof fact, a non-disparagement clause can be enforced even if the comments arefound to be true. (Californiarecentlypassed legislation that makes such clauses illegal. Asimilar bill is currently making its way through the U.S. Congress.)

Levy acknowledged that some reviewers do post comments out of spite, and that there should be a way forbusinessesto deal with them, but that a balance needs tobe struck.

Online reviewsites like Google, Yelp,TripAdvisorcan have a profound impact on business, meaning companies are becoming much more proactive about who is talking about them.

Tom Keenan,acybersecurityexpert and professor at the University of Calgary, said this chilling effect is analogous to the so-calledpatenttrolls in the U.S. who writetocompaniesaccusing them of infringing on apatent, hoping the company will pay them to go away.

'Hoping to browbeat people'

Companies are using the "same mentality ... [to]send out these letters hoping to browbeat peopleand in most cases... the people take their reviews down," saidKeenan,who writes aboutthe topic of his new book,Technocreep: The Surrender of Privacy and the Capitalization of Intimacy.

With few people familiar with the laws of defamation or libel,some reviewers will quickly retract or take down a comment when they've received a threatening letter from a company.

"There's no question that there's a chilling effect. If people get letters from lawyers, they right away say, I shouldn't be doing this,"said Keenan.

But Kevin Carter, a spokesman for TripAdvisor, said they will onlyremove a reviewif it fails to meet their guidelines, not because a business or individual doesnt agree with it.

"It is completely against the spirit and policies of our site for any business owner to attempt to bully or intimidate reviewers who have had a negative experience," Carter said."And when we are made aware of an issue, we address the issue with the business or individual. Instances of a member being sued are few and far between."

CBC's Go Public just highlighted a case in which anOttawa student deleted the negative reviews she posted againstCLV Group, a company that managed thebuilding she lived in,after she receivedlegal pressure from the company.

"Litigation is not a good substitute for customer service,' saidAaron Schur, Yelp's senior director of litigation. "Businesses that try to sue their customers into silence often end up wasting their own time and money and usually bring additional, unwanted attention to the original criticism."

Nancy Peterson, co-founder and president ofHomeStars, an online forum which gathers reviews onhome improvement experiences, said they havedeveloped an internal "bully' warning for companies who are harassing reviewers about their reviews.

"If areview isremoved by thehomeowner,90 per cent of the cases or more it's goingto be because the homeowneris scared, has been threatened to take down the review."

Peterson said they will send companies notes and warnings, which can impact their ranking onHomeStars' website.

HomeStarsalso works with the Toronto-basedlaw firmAluvionLaw, which has created somevideos for reviewerson how to write negative reviews.

'Stick to the truth'

"We did a few informational videosabout whenyou aregoingto write a negative review, what are some of the things to watch for," said Monica Goyal, a principal at Aluvion Law. "Whatare some tipssowhen youwrite the negativereview, youcan mitigateagainstsomebody suingyou for libel."

Most importantly, she said, "you want to stick to the truth. Don't veer from things that are provable...[We] go through examples where people might use inflammatory type of language or use exaggerated language. You want to stay away from that. Your review should be objective and factual."