Businesses Suing Consumers After They Post Negative Social Media Posts About Their Consumer Experience
A developing legal and ethical issue in emerging media is whether a business has the right to sue and win in court against a consumer who received what they believe was poor service or a bad product and posted a negative review.
Simply do a Google search with this or a similar phrase and many stories immediately pop up: “businesses sue over negative social media posts.”
One consumer who was angry over what she thought was poor work on her home logged onto Yelp and posted negative reviews about the firm that did the work, including claims that some of her jewelry was missing. The contractor filed a $750,000 Internet defamation lawsuit against the consumer saying the postings on Yelp and Angie’s List were false the court for a preliminary injunction to keep her from writing similar reviews. (Mataconis 2014)
Lawyers say it is one of a growing number of defamation lawsuits over online reviews on sites such as Yelp, Angie’s List, and TripAdvisor and over Internet postings in general. They say the freewheeling and acerbic world of web speech is colliding with the ever-growing importance of online reputations for businesses, doctors, restaurants, and even teachers. No one keeps track of how many suits are filed over online reviews, and lawyers say the numbers are still small but are getting larger. (outsidethebeltway.com 2014)
In another case, Hotel Quebec sued a former guest for $95,000. The reason? The guest wrote a negative review on TripAdvisor, exposing the bed bugs in his room and refused to remove the review.
This is clearly an interesting case, and it triggers a number of questions:
• Under what circumstances can a hotel ask guests to remove reviews from sites such as TripAdvisor?
• When a customer has evidence (videotape, pictures) to prove his or her review, can a business still go ahead and sue the customer because of potential loss in business?
• Will such a case set a precedent that will have guests think twice before writing negative reviews?
In yet another case, a Southwest Airlines worker sued a passenger over tweets blasting customer service. According to BusinessInsider.com, a singer from Nashville was sued by a Southwest Airlines employee for firing off a series of tweets, blasting the company’s customer service. The singer had taken to Twitter to vent her frustrations after a Southwest employee barred her from boarding a plane early with her children, according to the lawsuit (via Consumerist). The passenger had purchased Business Select tickets for herself and one child, but not for her other children and her husband, who were traveling with her. When she tried to board early with her entire family, she was told that only those passengers with Business Select tickets could come along, according to Patterson’s lawsuit. The passenger, upset that her 4-year-old child could not board the plane early with her, vented to her 187,000 Twitter followers, mentioning the gate agent’s name. The gate agent sued the passenger for defamation, saying it put her in a false light. (BusinessInsider.com 2014)
Lawyers say such cases are a cautionary tale for a new era: Those who feel targeted by defamation on the Web are more likely to file suit, and judges and juries are more likely to take such claims seriously than in years past, raising the legal stakes over vitriolic reviews, nasty blog comments, and Facebook feuds. (outsidethebeltway.com 2014)
Part of this emerging issue comes down to communications—could the problems have been solved before the issue went public?
Second: If someone posts a negative review, are they posting an opinion or statements of fact? There is a difference.
The following is from attorney’s who are experts in this field posting on JDSupra.com:
Before you vent online, sort out your facts and opinions (and understand what each will mean in a defamation claim).
Attorney Travis Crabtree of Gray Reed & McGraw explains, “Opinions cannot be the basis of a defamation claim, but facts can. That distinction can be a difficult one to make when in the middle of an online rant, so the main point is that reviewers should be able to back-up any factual claim, or claim that can be considered factual. Calling a dry cleaner lousy won’t get you in trouble. Saying they refused to return your shirt because they were wearing it can land you in court. Calling them thieves gets a little trickier.” (JDSupra.com 2014)
Jamie Nafziger, a partner at law firm Dorsey & Whitney, echoes the view thusly: “The most important things users can do to protect themselves from liability for negative reviews are to (1) be sure their posts contain honest opinions and (2) be sure that to the extent posts contain facts, the facts are truthful. If users are including facts, they should link to their sources, if possible. Lying or exaggerating can land a user in court. Posting flaming remarks, abusive comments, or lies also may tarnish the user’s reputation or result in the user being banned from participating in a social network. Don’t stop posting reviews—just be sure your reviews are truthful and based on your personal experience!” (JDSupra.com 2014)
For businesses, comes this advice:
“Consider bad reviews as valuable, constructive feedback: Attorney Jeff Van Hoosear at Knobbe offers an additional, very worthwhile perspective on an alternative to legal action: “Online negative reviews should still be treated as “customer feedback’ and used constructively by the business. Is there a problem that needs to be addressed? If so, address it, and let the reviewers know you’ve addressed it. Even if a business feels the reviews are unfair or untruthful—it should still reach out to the reviewers with an apology and offer to make it right.
Lawyering up should be reserved for the egregious case that goes beyond the negative and attacks the integrity of a business’s products or services. (JDSupra.com 2014)
Here is the most important factor in all of this: Some businesses are said to be adding in phrases to their terms and conditions, which many people do not read, that could penalize consumers for posting negative reviews.
The following analysis is from (blankrome.com 2014). Many dentists, wedding photographers, moving companies, locksmiths, and online retailers have each tried to limit negative online customer reviews via non-disparagement clauses in their service agreements.
Traditionally found in negotiated settlement or employee severance agreements, non-disparagement (or “no review”) clauses are now making their way into non-negotiated service contracts and the oft-ignored terms and conditions of online retailers. So the question becomes: Are non-disparagement clauses the wave of the future, or simply the next battleground in the war for online consumer rights?
In its simplest form, a non-disparagement clause seeks to prevent a customer or receiver of goods or services from posting negative reviews about a service provider or vendor by outlining the financial repercussions for any violation.
The impetus behind companies inserting these clauses is the popularity of review sites like Yelp.com, RipoffReport.com, Dine.com, TripAdvisor.com, and Amazon.com—coupled with the increasing number of people turning to such sites in choosing which companies to do business with. Because a poor review can be financially devastating, businesses want to prevent clients from bad-mouthing them—even if the criticism is true.
Still, the first issue regarding any non-negotiable, non-disparagement clause is whether it is enforceable. According to University of California, Los Angeles constitutional law professor Eugene Volokh in a Wall Street Journal article titled, “You Ruined My Wedding—And You’re Suing Me?” the answer, not surprisingly, is: It depends.
As a general rule, items agreed to in a contract are enforceable. But the “gotcha factor” is critical, Volokh told The Wall Street Journal. If a reasonable consumer would be very surprised by a clause in a vendor contract or a terms of service agreement, that provision may be deemed unenforceable. “You could see some of these [non-disparagement clauses] invalidated,” Volokh said. “This will be decided on a state-by-state level.”
Consumers should be careful when reading a non-negotiable service agreement, so as to be aware of any nondisparagement or similar clauses. This is especially true when dealing with an online retailer’s terms of service—which may be separate from the specific contractual provisions.
Businesses can also take steps to ensure their reputations are protected without impugning free speech. According to one commentator, a more defensible approach is to require a consumer to take their complaint to the company before posting anything online; in exchange, the consumer receives a coupon (or other item of value). This approach would not ban comments indefinitely.
But even setting aside the legal issues, public perception of companies using nondisparagement clauses may also be worth considering. Such clauses may send the message that a company does not stand behind its work, or is overly concerned with bad press. While a few negative reviews may be the cost of doing business, the overall impact will be negated by more positive reviews.
As businesses continue to take concerted steps to protect their online reputations, and consumers continue to post online, this area of law is likely to develop. The introduction of pro-consumer legislation will only quicken the pace. But until then, the battle for online consumer rights carries on. (blankrome.com 2014)
Summary
In this chapter, I have discussed the backlash by some businesses over what they consider to be unfair reviews from customers, and how some businesses are now “tucking in” non-disparagement clauses in their “terms and conditions.”